This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
ANDREW ROZYNSKI: All right. We are going to get started. Welcome, everybody. My name is Andrew Rozynski. I'm a male with brown hair and olive skin.
And I'm here with Reyna Lubin, a partner at the firm.
REYNA LUBIN: Hi, everyone, my name is Reyna Lubin. I'm a Black woman. I have a bun in my hair. I'm wearing a black sweater with white trim.
Great to be here.
ANDREW ROZYNSKI: Thank you for joining this panel. It's called A Newer Post-Cummings World, Navigating Disability Rights and Damages.
As you all are aware, or many of you may be aware, there is a Supreme Court case called Cummings v. Premier Rehab Keller, which has changed the legal landscape of litigating disability rights cases in various contexts, but especially with the ACA, the Rehab Act, and Title II. And just for a quick overview for those that don't know about the case. Essentially, the case involved whether emotional distress damages were available owned the spending clause statute such as the Rehab Act and the ACA.
A lot of it was whether federal funding recipients were on notice that if they agreed not to discriminate against people based on their disability, whether they are on notice that they could be on the hook for emotional distress. Now, the court essentially said that the federal funding process essentially is like a contract.
Therefore contract law principles apply. And since under contract law, emotional distress damages aren't typically available, that that would apply in these statutes. And essentially, it really gutted in a lot of ways a remedy that was so common for decades under these statutes, and it in a lot of ways, limited people's abilities to bring these cases because of a lack of ability to show certain types of damages.
So since then, there has been a lot of legal development that has occurred.
And what we are going to be going over is the types of legal strategies and creative ideas that you can do post-Cummings in order to have successful cases and get remedies for your clients, get attorney's fees for your cases, and get injunctive relief.
REYNA LUBIN: This is speaking. Post-Cummings, we have had numerous trials and numerous cases litigating in this landscape. I will talk about a couple of the trials and the relief that we obtained at trial.
So one of those trials is Jane Cummings v. Neighborhood Assistance Corporation of America, also known as NACA, N-A-C-A. This is the Jane Cummings from that Supreme Court case. She is back in litigation. This is a case that started in 2016 when the harm happened. We brought this case in 2018.
I will tell you that during the litigation, of course, it is unfavorable. A Supreme Court decision came down and Ms. Cummings did not know if she wanted to move forward with her cases, especially this case. She said maybe that's it for me trying to obtain relief.
We talked to her like many of our other clients and said, it doesn't stop here. We need to keep fighting. There is relief that we are going to be able to obtain, hopefully, at the end of this injunctive relief to make a big difference in the Deaf community.
Let's keep going. If you are willing to keep going, we are. And she was.
Just the basic facts of this case, NACA is a home ownership program. Many of you may have heard of it. They help low to moderate income persons obtain homes, better mortgage rates. And their whole mission is to help the people and all people.
So our client, Jane Cummings, a Deaf woman, wand to participate in this program. She wanted to have lower interest rates. She wanted to pay no closing costs, and she wanted to join the NACA program.
In order to join this program, you have to participate in what's called the homebuyer workshop. This is a workshop that lasts for many hours and go over what you need to do and the documents you need to obtain in order to participate in the program.
Knowing that it was going to -- this program was going to have a lot of back and forth, a lot of questions being asked, it's going to be very intensive, she knew that she would need an interpreter to attend this workshop and obtain the information like other hearing persons that have no disabilities and are able to sit in the workshop and get the information.
So she called NACA, and she asked for an interpreter. And they told her, we don't provide that. You can bring your own interpreter. She called NACA again.
And on the second call, she decided to record her call. And she again asked for an interpreter to be provided so she could attend this homebuyer's workshop. On the recorded call, the agent said we do not provide interpreters. We understand your issue. You can bring an interpreter with you.
That this is, obviously, a violation of law. And this is a company, nonprofit organization, that accepts federal funding. They are supposed to provide interpreters and assistance to persons free of charge. We had to sue them because, of course, our prelitigation conversations did not it go anywhere.
At trial, we brought on all the witnesses.
Their director states that there is no type of undue burden for this organization, that this is something that the organization should do and wants to do to provide interpreters. That there must have been some misunderstanding.
The agent who denied her the interpreter comes on trial and says, I guess I said that. I don't know. I don't know what else to say.
I said what I said.
That's what I thought the appropriate response was.
Well, the order came down. This was a bench trial, by the way. We were successful in proving her claims. It was successful that NACA did violate the law, they denied her on two occasions, they refused to provide an interpreter for her.
Because this was a Rehab Act only case, we, of course, knew we were not able to get compensatory damages. But we pled nominal damages, and we asked the court for nominal damages and injunctive relief.
In her order, and I will pull up the order now and read from it because it was really important -- in the order, the judge said that Ms. Cummings is it entitled to damages for NACA's violation of her rights under the RA. That NACA cannot evade liability by claiming it eventually offered her an interpreter after she brought this suit. Plaintiff's suit has vindicated the suit of Deaf home individuals utilizing NACA's services to be treated equally.
In doing so, she confirmed a benefit to the public. So although Ms. Cummings was not able to get this large awarded compensatory damages, she was able to obtain nominal damages and in conferring the benefit to the public, we are going to be able to obtain injunctive relief, we are currently seeking that right now.
We think that line from the judge's order saying that she is vindicated civil rights for Deaf persons and conferring the public benefit will be very important going forward in litigation. This is a case out of the Fifth Circuit, which sometimes it is not as favorable to civil rights issues. So having this order come down, I think is very, very important.
And she was extremely happy, of course.
It was kind of like a 360 moment or 180 moment. You know, a Supreme Court decision few years prior got her down, but here, she was so ecstatic and so happy that she had moved forward with this case and was able to make a big difference in the Deaf community and having that in writing by the judge, that she has made this difference really motivated her to continue to speak up and speak out if her rights are violated in the future.
ANDREW ROZYNSKI: Adding to what Reyna has just said, we think that the decision is really important and can be used to be sided in other cases. Because, oftentimes the worry when you just get nominal damages is whether you are entitled to attorney's fees, that can sometimes be a deterrent in some cases.
However, the fact that the court said that the fact that she was discriminated against and that she vindicated the civil rights of Deaf individuals and Deaf homebuyers to be treated equally, that that in itself confers a public benefit, which would allow for attorney's fees.
So a lot of times, opposing counsel and judges might say, well, you just got a dollar in this case, or you just got 100 dollars nominal damages in this case. There is no public benefit because you didn't get an injunction. You didn't get anything else. So but if this decision shows that violating someone's right to be treated equally does confer public benefit, and, therefore entitles you to attorney's fees under these statutes. And just so I will note that we will be taking questions.
We will just do it at the end. And we'll allow about 20 or so minutes for questions. We'll go from there.
So another interesting thing about this case is that they offered to provide interpreters after the lawsuit was filed. A lot of times, they will say, oh, your case is moot because even though we didn't provide interpreters before, we are offering it now so you have no case anymore.
But luckily, with the Rehab Act and having nominal damages available, we still stated that there is relief to be had here. And, oftentimes in prior cases, prior to Cummings, you had to prove intentional discrimination or deliberate indifference in order to get damages.
But under contract law principles, you don't have to prove intentionality to get nominal damages under a contract. And, therefore, oftentimes, when cases would get dismissed because of lack of showing of intentional discrimination or a lack of deliberate indifference, we are now making arguments that contract law does not require intentionality for nominal damages.
Therefore the Rehab Act does not either. So it allows a better path for a case not to be dismissed because of lack of deliberate indifference or intentional discrimination.
So these are sort of two areas that we feel like this decision provides a different path for ability to get relief for the clients. Currently, what the scope of injunctive relief can be awarded in this case is still pending. And surprisingly, even though they said that they will provide interpreters, and they will do so when the client has gone back to them to ask for interpreters, they are still denying to folks and directing them to the self-directed online program rather than providing interpreters for their workshops. So they have failed three times now. The judge has given them a couple of chances.
And there is currently a motion pending for injunctive relief, which we anticipate will be granted at this point.
REYNA LUBIN: For anyone who wants to look up that case, that's Cummings v. Neighborhood Assistance Corporation of America. And this is filed in the northern District of Texas, Dallas Division, Civil Action, 318-CV-01746-M.
We encourage everyone to look at that order and try to utilize it in your cases and your prosecution of disability rights. The next case that we want to talk about is our case out in California. This is Patterson v. Six Flags Theme Park. This is a matter that we tried, Andrew and I tried in the fall, this just past fall.
We were in Sacramento. This is a case out of the Eastern District of California. And let me give you guys the number now so that you can also look that one up. That is 221-CV-02398-KJM-AC.
This is a case that we also tried in front of a bench. Melvin Patterson, our client, is an avid, enthusiast. He loves going to theme parks. That's his thing.
Him and his family, they do it all the time, on the weekends if they have an opportunity, during the summer. They do theme parks. They go to theme parks all across the country. They do Disney. Six Flags, they do it all.
For his daughter's, I believe, 12th or 13th birthday, she wanted to have season passes for the Six Flags that was nearest to them.
And so, he went and bought gold passes, season passes. This is like the package that has the works. You can go to all of the shows. You can go to some events that they have.
You, obviously, have rides. You have food, discounts on merchandise. He bought the package that was the works for her birthday. He didn't just buy it for her, but he bought it for himself, her, the whole family, so they could go as a family to this park.
Prior to the date that they wanted to go for her birthday, he called the theme park on several occasions and asked for interpreters. His children are not deaf but both him and his wife are.
And he said that they will need interpreters so that they can understand the announcements that are going on, so that they can go to the shows that are happening that day, and that the only way that they would be able to participate like all other hearing persons is with an assistance of an interpreter. So he makes numerous calls, tries to speak to people. Everyone is sending him which other way and hanging up on him.
So he decides, him and his family are going to show up on that day still and they are going to go and see what happens. So they get to the theme park on that day and they say, hey, we've been making calls, I have been sending emails. No one has gotten back to me. We need an interpreter; me and my wife are Deaf.
We would like to enjoy this theme park with our children. They say, no can do. Call this number, maybe at a later date and try to get an interpreter that day.
They decided to stay at the theme park that day because they had already made the effort to go out there, and they weren't able to go to any of the shows. They weren't able to enjoy it fully, but they stayed at the theme park.
The following days, he reached out to Six Flags on several occasions and said, hey. I have had this experience with me and my family, and on my next visit, I'm going to need an interpreter.
They, on repeated occasions, at the local level, the corporate level, sent emails, answered his calls, said we don't provide interpreters, bring your own interpreter. Refer to this policy, refer to that policy that says you can bring your own interpreter.
And that it will give your own interpreter free pass to ride the rides that day. You can bring your own interpreter. Pretty ridiculous. He says after numerous occasions, hey, just give me my money back.
They say, no can do. You bought a season pass. It's nonrefundable. You can bring on an interpreter and we will give your interpreter a free pass.
Mr. Patterson was not taking that for an answer. He was finding every email he possibly could online, in manuals, emailing every level again stating sympathies are the dates that we are going to be at the park. I'm going to give you specific dates this Saturday, this Sunday, this Monday.
And I'm going to need an interpreter for all of these dates. Still denied. Had to take this case to trial in front of a bench. At trial, we presented the evidence.
The evidence -- we showed all the emails that he was sending. We discussed the calls that he made. And the judge ultimately sided with us that it was without a doubt a violation of his rights.
This was brought under the ADA Title III and the Unruh Act. In this case, we were able to get actual damages, compensatory damages because the Unruh Act does, in fact, allow for that.
So the judge, who was very invested in this case, she wrote a very lengthy decision. I believe it's 20, 30 pages. And in her order, she does outline that we entitled to injunctive relief. We are entitled to actual damages, the 200 dollars that he spent on the tickets in addition to the pain and suffering, the emotional distress that he and his family suffered, which was 18,000 dollars in actual damages.
Also, we were able to recover statutory damages. Under the Unruh Act, the plaintiffs can prove violations under the Unruh Act. You are eligible for statutory damages, 4,000 dollars per violation. According to her calculations, there were numerous violations, and that totaled to 36,000 dollars in statutory damages.
This was a wonderful decision. Our client was extremely happy. He only wanted, honestly, a refund at the beginning whenever the first denial came down. And because they did not issue him a refund and he continued to stand up for himself and continued to deny, deny, deny, finally contacted us and we were able to successfully help him.
ANDREW ROZYNSKI: So now I want to go a little bit into strategies post-Cummings.
In terms of what you can do in terms of to obtain good relief for our clients both in forms of damages, forms of injunctive relief, and forms of nominal damages as well. And what tools can we use at your disposal?
Interestingly thing about contract law, and we've done a lot of research into contract law principles since Cummings has come out, is that there are a variety of different forms of types of contractual damages that could apply in a discrimination setting. One of them being expectation interest damages.
So for instance, when someone wants to go enjoy whatever services they want to enjoy but is denied access to those services, there is an expectation interest that they should be able to pay for that service and get the benefit of that service.
But when that is interfered with by discrimination, they are inherently prevented from enjoying that service, and, therefore, it's offered expectation interests because of it. Sort of thinking about it sort of like a loss of opportunity type of damages rather than an emotional distress damages.
And we were able to successfully use this theory post-Cummings in our trial that we did, that we talked about at the last session last year, which is called Wade versus University Hospital. The court allowed us to give that jury instruction to the jury, and the jury found in our favor and awarded 50,000 dollars of expectation interest damages in that case.
And so, find that it is easy sometimes emotional distress, it seems very simple on its face but it can be very complicated. And sometimes jurors especially can be skeptical of emotional distress damages, whether someone really suffered it or not.
But loss of opportunity or expectation interest damages, when they see someone has been denied an opportunity of something, that opportunity has some real value to it, that they can sort of put in their own minds what is that loss of opportunity worth, and they can sort of put a number on it. So that is a different way of presenting damages in a case, in a post-Cummings world.
Going back to nominal damages, we find that to explain to a judge on summary judgment or at a trial, is much easier nowadays to say that we don't necessarily have to go into whether someone had some sort of state of mind when they were denying an opportunity to somebody but that they just denied that opportunity.
And we actually, for the first time, we were able to obtain post-Cummings summary judgment in favor of the plaintiff on nominal damages in a case called Ryan Cuevas v. City of Jersey City in the United States District Court for District of New Jersey. And in that case, we were able to sort of explain to the judge in our motion that there was a violation here, and that we can find as a matter of law, a violation of the right.
Therefore we are entitled to nominal damages. But for the rest of the damages that may be available, we can go to trial on that. So that allows, it makes -- it's always good when you are going to a trial knowing that you already won on liability, it makes things a lot easier to present. And luckily, that case resolved before it ever went to trial.
But it is a very effective sort of tool to use; for sure. And also, too what we have been doing is using this Supreme Court case -- I might butcher the pronunciation, but it's called Uzuegbunam. It's a 2021 Supreme Court case involved religious discrimination. It was an 8-1 opinion. It was a nominal damages case. The question was, this person was handing out religious literature on campus, and the university was not allowing them to do so. And effectively, infringed on his constitutional rights, freedom of speech.
By the time this case had been litigated, he had long left that university and was essentially a moot thing at that point for any injunctive relief, but he still wanted nominal damages.
The question was, is he entitled to nominal damages or not? 8-1 opinion, the court found that he was entitled, but there are certain things such as civil rights violations that allow you to obtain relief in court even if it is just nominal damages. So using that in conjunction in Cummings and the contract law principles will allow your cases to get to that trial stage and not be dismissed on summary judgment.
REYNA LUBIN: Then, of course, always turning to making sure that your state laws may have compensatory damages if you are still looking for emotional distress damages or other damages, the state law counterparts may provide for that. We litigate a lot out of New York, and we have very vast state laws and city laws that allow for plaintiffs to recover emotional distress damages and all compensatory damages under those state and city laws. So we are always still looking, no matter what jurisdiction we are in, to what the local law is there.
I cannot stress how important injunctive relief is. It's, of course, everybody wants a settlement, and to get paid, or to get an award from the jury.
But our clients are over the moon when these injunctive relief decisions come on and are, of course, favorable. This is what really makes a difference. These places are ordered to change their policies. They are ordered to change their procedures.
They are ordered to put notices in the front of their buildings that say that this is an accessible place, and that is a very big deal. That's a very big deal for the disability rights community. So being able to do that is everything.
If you do have clients that are possibly a little concerned about maybe moving forward in a case where there isn't a monetary recovery, that we only have nominal damages, we only have the ability to obtain injunctive relief, I would stress the importance of injunctive relief and how that does make a difference in the country.
And the clients that we have talked to about that have been completely onboard with moving forward with injunctive relief cases only, and they are hopeful that they make an impact.
When we see these decisions like the Cummings decisions that we talked about, where the judge expressly says that our client conferred a public benefit. She made a difference, and this is a big deal, those are the types of decisions that we are seeking and that we think will continue to push the agenda of making sure that civil rights and access is available to everyone.
ANDREW ROZYNSKI: Also, we've been floating around in vary use cases, which haven't been decided on yet, various different kinds of theories using contract law analogies to our advantage. For instance the Rehabilitation Act for a long time has said, in terms of the statute of limitations, you look to the most analogous statute or area. And for most states, that was the personal injury statute or it was the local civil rights statute, or whatever.
But in most states, if not all states, the contract law, statute of limitations is way longer than the personal injury statute or the civil rights statute of limitations. So we were floating arguments now which have not been decided in court yet.
And I'm not sure if any court has directly hit this head on yet, is to say that, okay, well, if the Supreme Court says that the Rehabilitation Act claim is most analogous to a contract, and that the contract analogy should apply, then the contract law statute of limitations should apply.
So to the extent that you may have cases that may have been prescribed or the client has come to you too late, what not, I think that that is a callable argument that can be made to potentially bring a case and save a case under that sort of analogy post-Cummings.
And so, that's another way of creatively kind of using it to your advantage.
So with that said, I think that it would be good to open it up to questions. I'm sure a lot of people have experienced different kinds of challenges, or maybe some of the things we have said have prompted some questions. So I wanted to open up for some questions.
Questions and Answer Session
>> I'm happy to run a mic to whoever has a question. We do want to make sure that everybody can hear the questions.
ANDREW ROZYNSKI: Thank you so much.
>> Holler out if you have a question. Raising your hand is not ...
>> I have a question.
Okay.
>> Way over on stage left.
>> There we go.
>> Thanks, guys. I'm fascinated by this discussion, as we all are. I think my issue is how do you -- how are you guys approaching loss of opportunity, valuing that? I can do emotional distress damages in my sleep. I find myself in this new territory. I can give the court, settlement, verdict, hear all the examples for emotional distress, but how are you approaching that evaluation?
ANDREW ROZYNSKI: So for one instance, in our hospital cases, for instance a lot of times, our clients have bills that are tens of thousands if not hundreds of thousands of dollars. So we are counting the loss of opportunity, and we are tying them to the bill, the hospital bills.
And so what is medical care worth? Well, we have bills for that. According to the hospital, it's 1.5 million dollars, is what they got paid. So what is the value of those medical services worth when you can't communicate with your medical providers? Well, we would argue that it is an 80% plus reduction of that, and, therefore, the difference in value is your loss of opportunity damages in that front. So that's sort of one way of looking at it from the medical context.
Same thing with the education context. Your tuition, tying it to the amount of tuition per year and how lack of effective communication has diminished your value.
So I think that in an education case, you could go even farther than tuition and say, okay, what is your loss of opportunity now for your career and go even further with that.
So same thing with medical cases. What is the -- if now you have additional medical issues or whatever because you weren't told -- you weren't given a medication you should have or whatever, not to make it a medical malpractice case but any means, but sort of arguing the case of opportunity there.
So those are sort of creative ways.
Also, things that we have argued too is the value of interpreting services. So for instance, we have a direct amount of interpreter services are worth. So had is that person had interpreting services for 200 hours while they were at the hospital?
Well, you know, 100 dollars an hour. How much would that be worth? Sort of having sort of an unjust enrichment type of argument in that kind of setting, that is money they would have paid but didn't pay, but for the discrimination. So those are sort of different ways to -- and all different sorts of contexts, you can utilize that because, oftentimes, there is some sort of service or benefit that's being provided by whoever you are suing.
REYNA LUBIN: And there is a cost. There is a cost associated with it. If you are at a restaurant, at your job, there is a cost, a similar, there is some sort of monetary something that is associated with what you are doing or what service you are getting. We are always thinking about what setting are you in, and how much did it cost to get there or how much did this service cost, or if it's a job and I wasn't provided an interpreter and now I have lost out on a promotion, how much was my promotion going to be?
And now I have lost 20,000 dollars when maybe if I had an interpreter, I was going to be able to perform at that job and be able to get that pay increase. So every single thing, every single entity we are looking at how much does it cost.
ANDREW ROZYNSKI: Any other questions?
>> This is Tim Elder here. Thank you so much for all the work you guys are doing. You guys are just knocking these things out of the park. It's been so great to borrow from your jury instructions and trial orders on effective communication stuff.
It's been so great.
You guys are doing just a phenomenal job.
REYNA LUBIN: Thank you.
>> So thank you. A couple questions, one, have you had to litigate a fee petition on purely nominal damages award yet? If so, what did that look like?
Then I have a question about your Six Flags damages award as well. I will let you do that one first.
REYNA LUBIN: Nominal first.
ANDREW ROZYNSKI: So currently, our attorney fee applications are pending in these cases. So but the encouraging thing is that in the bench order on the Cummings case, the judge said that we did confer a public benefit, which is, oftentimes the question when you get nominal damages of, if the judge says you did not confer a public benefit, then the judge has wide discretion to significantly reduce or even deny your fees.
But that's why we like to emphasize so much on the judge's order there that saying that a denial of equal opportunity in itself being vindicated in court confers a public benefit.
And that in itself is a public benefit. I think that if you can use that as a citation, that could get over that hump of just denying those fees out right.
Because the judge is saying you didn't confer a public benefit.
REYNA LUBIN: And I think that the judge in this case -- we are not in her mind, but I think she wanted to make sure that we had the ability to get attorney's fees, knowing that this issue if you just get nominal damages, maybe we will be denied, that she even went a step further in her order and said, nominal damages are available under the Rehabilitation Act.
And that allows the court to award the prevailing party reasonable attorney's fees. Then goes on to say, we confer the public benefit. So she wanted to make sure that we had the ability to, hopefully, recover attorney's fees. Like Andrew said, our application is still out.
TIM ELDER: I would love to hear how you approached decisions about bench trials or jury trials and some of these things, I guess. If damages are off the table, maybe that is obvious.
And with the damages under California claims, were those cumulative? So the statutory were on top of the emotional distress?
REYNA LUBIN: Yes. Yes.
ANDREW ROZYNSKI: Yeah, in terms of choosing bench trial versus jury trial, our instinct -- we've done better at bench trials than we have at jury trials.
But that's just looking at it from a historical -- so if we look at say the 20 or 30 plus trials we have done, if we took statistics, you know, we say we have done better at bench trials.
But what we have shifted in the past couple of years is how we present these to a jury, because luckily, we get to talk to a lot of juries after trials whether we win or lose. So that has a huge sort of influence on how we present our cases. And what we find most relevant as it pertains to what we need to prove on our claims in the law is not always what the jury fines pervasive or relevant, necessarily. And, therefore they might not find in your favor.
So we have adjusted how we present to juries and how we pick our jurors now. We don't pick our jurors based on where they live, what their political affiliations are, what they -- who they favor in terms of what candidate or that, what news articles that they've read.
But what we find is sort of the most determining factor -- this is a huge credit to Reyna on this, because it was really her idea, is how adverse they are to awarding damages or not awarding damages. There are people that they could be hardcore, civil rights, liberals or whatever, but just don't feel comfortable awarding damages. They are not -- they don't want to hurt -- they might not want to hurt somebody by awarding damages against them and they are not going to do that.
We've had very politically diverse jurors but we all know when we voir dire them, that if we prove our claims are more than willing to award damages in our cases, we found that that has been a great contributing factor. And ever since we sort of taken that approach, we have won every jury trial we have had thus far. So I think that kind of shows a good shift in strategy.
>> If I could add to that ... I'm coming at you again.
I just got out of trial, Andrew knows that's my favorite question in voir dire.
Okay, we are going to start with 20 million. Who in this entire room, you don't care what evidence I give you, you are going to say no.
I'm not paying that. I scale down.
No, 20 million, 15 million, 10 million, you can trike them for call out. They are not going to listen to the evidence. Those are great ways -- I totally agree. It has nothing to do with the other demographics I thought about. You only learn, I think in the last year.
REYNA LUBIN: Same. Same.
This is Reyna speaking. It's actually kind of shocking when you just ask them, you know, if I prove my case, are you going to have a difficult time awarding a monetary amount to my client? And some people really do pause.
And when they pause, they end up saying, um, yes.
Now, we are striking them because they have had pause in giving money, an award gives them pause. So it has definitely made a big difference. Like Andrew said, we've won every trial since we have done that. I think that is weeding the people out that won't do it either way.
But we still do, you know, go back and forth if this case is right for bench or this case is right for a jury. I think it just sometimes comes down to the facts. Sometimes there is just a clear violation.
But the facts aren't as exciting as maybe a juror might want to hear.
It might bore them, might make them fall asleep. They are not listening to your evidence or your case. They come back and who knows what their decision is.
So when it is these clear-cut violations that are not, I guess, sell Latin Americas, sometimes we like to put them in front of a judge so a judge can make the decision that we think that she should come up with or he should come up with. I think we have a better chance.
And we don't have to roll the dice. I understand that, of course, every trial is rolling the dice, but that's just how we see it sometimes when it is very clear-cut.
>> Eve has a question.
>> Thank you all so much. I always learn from you. I learned that question, which sometimes the judge will let me ask and sometimes they will not let me ask.
REYNA LUBIN: Yes.
>> But it's a good question.
Tim, we just got, just got last week, fees awarded in a nominal damages case where it was 10 dollars plus injunctive relief and a million dollars in fees and cost. So I'm happy to share.
REYNA LUBIN: Amazing.
>> I love this argument that under contract law, you don't have to prove intent. Have you briefed that, and can you share that with us?
ANDREW ROZYNSKI: Oh, yeah. We have thoroughly briefed that.
>> Excellent.
ANDREW ROZYNSKI: Citing contract treatises, citing the Supreme Court case, which I think is great to have that Supreme Court backing on that issue.
And it's really helped a lot and has been accepted by judges. It really has helped us. Because we just kind of know, hey, if we can just get in front of jury, then we are good. There are too many cases from the case law that have been thrown out.
Oh, yeah. You were totally discriminated against, but we don't think it was intentional. So case dismissed. So I think that's sort of a positive that's come out.
Always try to look for the positive side of things after bad decisions like Cummings.
We've noticed that our -- I'm not even sure there has been any cases that have been dismissed on summary judgment since Cummings that we've handled.
But we definitely have had a couple before Cummings that got dismissed on summary judgment.
So I think that helps your settlement value of cases. It says, looking at sort of the numbers and the statistics, we've done way better for our clients post-Cummings than pre-Cummings in terms of settlement value, injunctive relief obtained, and everything else. So while when that decision first came out, we thought civil rights as we know is over. Let's just close up shop.
(Laughter)
But it seems like our clients are generally doing better and getting better relief.
REYNA LUBIN: Yeah. I feel like it made us think harder and become more creative and make even clearer arguments. And it's really paid off. You know. We don't have to just say this saddened my client and he is upset.
And now this and this happened also. This benefit, he was not entitled to or able to have. This is value of what it could be. We talked about it before too.
We haven't done it yet, but we can get experts that can testify to some of these economic damages. And we haven't done it, but we will. We will. We will do whatever is necessary for our clients.
But it's been great. And I think that, like Andrew said, it's been extremely beneficial four our clients moving forward after Cummings.
Any other questions?
>> I have a question. I listened this morning --
>> Excuse me, sir. I'm going to bring you the mic.
>> I will get up.
>> That's okay. You don't have to get up.
>> I'm old.
>> That's my job. Thank you.
>> I listened this morning to Tim and had a defendant that didn't raise Cummings on an effective communication case.
And I listened to Eve saying that Brown, Goldstein, Levy, one of my favorite firms, if not my favorite, got a million dollars on nominal damages. What I don't understand is why isn't the defendant offering judgment for a hundred dollars at the beginning of the case and getting you out and you get nothing? Why don't they do that? What's the defense to that?
I know you get fees for drafting the complaint, but come on. That's not a lot of money. A million dollars.
>> We went through that.
>> You get an offered judgment, what are you going to do?
ANDREW ROZYNSKI: This is a good question.
And I have these questions too. I actually talked to defense counsel about that exact question because I was thinking the same thing, Mark, is that if I was defense counsel, I would immediately put in an offer of judgment.
And the case would be over.
When I talked to a lot of defense counsel, they say, yeah, but because the client has insurance, that presents some issues for us.
And because an offer of judgment, even though it says on paper we do not admit liability. We have no -- we disclaim it all. It sort of -- you are losing the case, essentially. You are admitting, almost admitting that the claims against you are valid in some respects.
I know there is a total number of arguments to say, well, not so much. Yeah, you could argue this and argue that. But for a lot of insurers, they do not want that judgment against their client.
Therefore, they will not under any means do an offer of judgment for their case. So I think in a lot of ways, it's the insurance company tying the hands of counsel in that respect.
But also in other -- that's when they are just purely that's the only statute available. But in most jurisdictions that we litigate in, there is more than just nominal damages available. But in jurisdictions where that is the only thing, that's what I have been told is the reason, is because the insurance companies won't let me have judgment against a client.
>> What do you tell your client when they get an offer of judgment saying that if you lose client, you are going to be responsible for the defendant's attorney's fees?
ANDREW ROZYNSKI: That, because that wasn't on mic, I will repeat that question. Essentially, Mark is saying, what are you going to tell the client if you get an offer of judgment and you tell them, hey, if you deny this, you are going to be on the hook for cost and maybe attorney's fees.
But I mean, there are times we've had clients accept offers of judgment. That has happened before. Obviously, you have to explain to the client that that is a possibility.
And also, we have to look at if we win, how likely will the client get injunctive relief? Because, oftentimes, offers of judgment do not contain injunctive relief. And, you know, there is immense value to getting injunctive relief. So that's another consideration. Well, this offer of judgment doesn't offer injunctive relief. Here are the risks. You know, you could potentially be on the hook for their costs.
Do you want to take that risk?
Everything is just sort of you just have to fully inform the clients of the risks involved, and they make the decision. But I think I have only had maybe one case so far where an offer of judgment was made and it was accepted by the client. Oftentimes it's not just like a dollar. Even in situations where they think that they are entitled to a dollar, they might offer 5, or 10, or 15,000 dollars plus reasonable attorney's fees. Then I just come back to them and say, well, I have this expectation interest damages argument that I was able to present to a jury before. So we are going to use that. I also believe that you are entitled to injunctive relief.
I think this and that. And so, we use those arguments as a way to maybe scare them to bump up the settlement number a bit more, as they get better relief with clients.
REYNA LUBIN: I think the injunctive relief portion is really big. Most of the time, the offers of judgment never have injunctive relief. That's always a tool that we are using and we are talking to defense counsel about. Sometimes can save you from having to pay that cost.
ANDREW ROZYNSKI: Yup. When we were researching nominal damages, one interesting thing was where, like, in an ADA case, for instance, like Title III case, whether you can get nominal damages in equity or not.
And there is certain cases that sort of talk about that, whether you can get nominal damages in fact or equity when there is no other relief available.
And it's an interesting question whether an argument can be made under Title III, for instance there are cases where someone had a Title III claim but then the business completely should down their business and it's no longer in existence. They are trying to argue whether the case was moot or not.
The court awarded nominal damages in equity in that case even though they couldn't get any injunctive relief. So we've drawn on sometimes on those cases in our Rehab Act cases to say that not all damages should be available, whether relief is available or not in the judge's opinion.
Any other questions?
>> I have a question.
>> Where are you.
ANDREW ROZYNSKI: This is the person who swore me into the bar in New Jersey.
(Laughter)
>> Hi, Andrew. I have a couple questions. First about intent. You say under contract law; you don't have to prove intent.
Do you have any opinions that a judge has filed that argument?
ANDREW ROZYNSKI: Yes, yes.
>> You actually have opinions from judges who say you don't have to prove intent?
ANDREW ROZYNSKI: Yeah.
>> And you will be able to provide that to us?
Yes.
(Laughter)
Second thing is, your argument about getting damages in a hospital case based upon the hospital bills, have you been able to get that successfully litigated that at all?
ANDREW ROZYNSKI: So we've argued that. Those cases have settled before they have been able to be tried. But the other side has not said that that's not -- that it wasn't persuasive or anything like that. There is no opinions on that that I could share on that issue.
But I think that it's a strong argument. I think that when actually challenged, there is a strong opportunity that it's going to be allowed.
>> I have seen employment cases where you would argue, like you were saying, if there is a loss of a job or something, that's actual damages. That's economic damage. That's easy.
REYNA LUBIN: Yes.
>> But hospital bills related with the actual damage in the case, that's a little bit different with loss of opportunity. So I just was wondering whether you actually got a defendant, do you think to actually increase the amount of the damages they are willing to pay because of that argument?
ANDREW ROZYNSKI: Well, we did mention the Wade case where we did argue expectation interests damages and was allowed by the judge.
And it was decided by the jury for 50,000 dollars.
And so, I think the bill in that case was actually less than 50,000 dollars in that case. So it was allowed to go forward and was ruled on by the jury. But there is not sort of a written opinion on it, necessarily, quite yet. It was just --
REYNA LUBIN: Like a line that the judge said that we are allowed to go forward in expectation damage and seek money for expectation damages.
>> Did you then bring in the hospital bills or no?
ANDREW ROZYNSKI: We didn't -- we didn't formally present it to the jury, but we were prepared that the other side was arguing that -- because there is case laws in contract law that says that that -- to obtain loss of opportunity or expectation in interest damages, you have to tie it to some sort of tangible number. So we were ready to present the hospital bills to the extent that the other side was arguing we are not entitled to expectation interest because we have not sufficiently tied it to a number.
But they didn't raise that argument. They just made other arguments, and the judge rejected them.
Therefore we were able to proceed.
REYNA LUBIN: And we tied the expectation when we were presenting to the jury, and be through testimony to the patient's bill of rights. We showed all of the rights that the patient had and saying this was his expectation. He expected to X, expected to Y, Z. We went through the patient bill of rights to try to tell the jury that this was his expectation of being treated in the hospital, and this is not what he received.
This treatment was quite opposite to the patient bill of rights that is posted everywhere and given in all the hospital documents.
And the jury bought it.
>> Hmm. Thanks.
>> I have a question. It's easier to pass it back.
>> We are all good. I'm tall.
(Laughter)
Thanks for all this. It's super interesting. Contracts are not in my usual neck of the woods in terms of legal claims I evaluate. So I guess I'm wondering, since you have thought about this issue a lot more, if you perceive any risks in pushing this analogy too far, whether those risks are to the law or to a judge or jury's understanding of your claims in the case?
ANDREW ROZYNSKI: I think that the reason we are pushing these is because otherwise, we just have to be satisfied there are no damages available. So if it is making these arguments or having nothing available, we are going to make these arguments.
And they have caught on some steam. So you know, I haven't quite thought of what's the downside of making these arguments only because not making arguments, there is really nothing to be had there.
But I think that finding whatever you can in the contract law, in the history of contract law, to get your client a benefit, whether it be with potentially statute of limitations or expectation interests or consequential damages, or things like that, are creative ways to argue things to get your client more relief that they wouldn't otherwise be entitled to.
But it's an interesting question. I just haven't thought of specifically if there is a big downside to continuing these arguments.
>> Way up here.
>> Way up there, all right. Here I come. You stay there. I will come over there.
>> I couldn't remember if there were stairs on that side too or not.
>> I appreciate it. I just have a quick --
I just have a quick question. Have you had any push back? I was in the middle of a trial when Cummings came down. Have you had any push back on the concept of the client has to mitigate their damages under contract law in bringing forth some of these arguments that you have been talking to us about.
Thank you.
ANDREW ROZYNSKI: We have not had a mission argument made in defense. Although, -- I could foresee a smart defendant making that argument that, well, okay, you lost this opportunity.
But why didn't you sign yourself out against medical advice and go to another hospital? You didn't mitigate your damages for loss of opportunity or something like that. I could foresee perhaps a defendant making that argument.
But I think that would be -- it would probably be a harsh argument to make in front of a judge or jury. To be, like, well, you know, if you didn't like our discrimination, why didn't you just go elsewhere? I'm not sure that would land very well with a judge or jury at practical sense.
REYNA LUBIN: Especially because services, education, job. It's like you know, what was I supposed to do? Quit my job? What was I supposed to do, check myself out and go to a different hospital?
So I do think that we would be able to push back on that mission because it's almost saying that accept the discrimination, go elsewhere.
And that's not what these statutes say. That's not what our clients have to do.
ANDREW ROZYNSKI: Anything else before we wrap up? We are almost out of time.
>> Hi. Sorry, I came in late. Maybe I missed this. First, thank you guys for all the phenomenal work you are doing in this area.
Oh sorry, I haven't asked my question. So nobody has missed anything.
I want to plug, the Institutional Accountability Center, they did an amicus briefing, on behalf of law professors. They just submitted one in our ongoing case LACCD, also digging into contract law treatises and some of these theories and more support for lost opportunity damages. It can be nonpecuniary. I want to plug.
They are active in this space and have great resources. So if folks need amicus help, I'm happy to put people in touch. That's all.
REYNA LUBIN: Amazing.
ANDREW ROZYNSKI: That's a great brief. I'm going to go on Pacer and --
>> I will pass it out.
ANDREW ROZYNSKI: Perhaps that will be a most good recent treatise, followed recently on the consequential damages and what not.
Overall, in conclusion, the theme is that when -- this is probably a T to everything that's going on in the world these days when things are challenging and there seems to be no real path, at least initially, just keep on thinking. Try to be creative just keep fighting and pushing forward. It always seems to find a way.
I was the person who argued Cummings in the Supreme Court, so I was just -- when I first got that decision, I just felt totally devastated. I felt like I failed so many different people.
And so sort of like just spending all this time where I can just find different pathways for relief has been sort of a mission for me. So I am obsessed about it.
(Laughter)
How else can I get relief here because I just want to make sure that the people continue to be protected and can have their day in court and have their civil rights be protected.
REYNA LUBIN: Your mission has been successful because we have many --
(Laughter)
>> Good for you. Good for you.
ANDREW ROZYNSKI: All right. Well, I think that concludes our presentation. Thank you for your time and listening.
REYNA LUBIN: Thank you.
(Applause)