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Federal Court Grants Final Approval to Ground-Breaking Settlement That Will Ensure NYC Children with Diabetes Receive Appropriate Care in School

By: devweb

Federal Court Grants Final Approval to Ground-Breaking Settlement That Will Ensure NYC Children with Diabetes Receive Appropriate Care in School

April 25, 2023 – Brooklyn, NY – A federal court has approved a landmark settlement that will ensure children with diabetes in New York City receive the care they need to fully participate in school and school-related activities. This class action settlement resolves claims that New York City, the Department of Education, the Department of Health and Mental Hygiene, and the Office of School Health systemically failed to ensure that students with diabetes could attend school safely and have access to the same educational opportunities as their peers, in violation of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act (“Section 504”), and the New York City Human Rights Law (“NYCHRL”).

Under the Settlement Agreement, Defendants will modify their policies, practices, and procedures related to: 1) planning to determine the needs of students with diabetes and how Defendants will meet those needs (called a “Section 504 Plan”); 2) providing care such that students with diabetes are not excluded or segregated from their classmates; and 3) training for staff and contractors (nurses, paraprofessionals, administrators, bus drivers and attendants, and teachers and other staff) and the provision of services during the school day and in afterschool activities. Read the Settlement Agreement. These reforms include:

● The development and adoption of a template plan for students with diabetes, based on the American Diabetes Association® Model 504 Plan, to guide schools in preparing to meet the needs of students with diabetes;
● A commitment that accommodations necessary to meet the needs of these students cannot be denied based on resources or available funding;
● New timelines related to how school staff will plan to meet the needs of students with diabetes, including meetings to develop Section 504 plans and ensuring students can attend school with all accommodations in place on their first day of school;
● Robust new training for nurses, paraprofessionals, teachers, administrators, bus drivers and attendants, and other school staff on how to care for a student with diabetes; and
● Changes to ensure appropriately trained staff are available so that students with diabetes can attend field trips, eat with their classmates, ride the bus, and participate in sports and other afterschool activities, alongside other children.

The Settlement also provides for robust monitoring and reporting and the appointment of the American Diabetes Association as the Joint Expert, and Peter D. Blanck, Ph.D., J.D., as External Monitor, for a term of three school years. The settlement will apply to a class of students that have diabetes and are now or will in the future be enrolled in New York City Department of Education public schools. The class was certified by the Court on June 18, 2019. Click here to read the Class Certification Notice. Previously, Judge Gershon granted Plaintiffs’ motion for partial summary judgment as to the routine denial of access to field trips and bus transportation. Read the Opinion and Order.

On November 22, 2022, United States District Judge Nina Gershon granted preliminary approval to the proposed settlement and set a date of April 19, 2023 for a Fairness Hearing. Read the Order here. The Parties sent notice so that members of the Class were aware of the Settlement and the Fairness Hearing, and none submitted written objections. On April 24, 2023, the Court granted final approval the Settlement, which now has legal effect.

“This extraordinary settlement will give NYC public school parents of students with diabetes the comfort and peace of mind in knowing their children will be safe at school as they receive care as prescribed by their child’s diabetes health care provider,” said Charles Henderson, Chief Executive Officer of the American Diabetes Association. “The American Diabetes Association is hopeful this settlement with one of the largest school districts in the country will motivate other school districts to examine their diabetes policies and practices and also offer parents and advocates another tool to add to their diabetes advocacy toolkit. This precedent setting outcome has the potential to ensure that students with diabetes in other states get the help they need at school.”

“So many families like mine had their lives changed when their child was diagnosed with diabetes,” said Yelena Ferrer, the parent of named Plaintiff M.F. “With this settlement, the transition at school will be easier, less stressful, and more fair for thousands of families like mine. I feel privileged to have been part of this amazing effort to vindicate my son’s civil rights and ensure other kids with diabetes get the support they need.”

“I am glad to have been able to help bring changes that will ensure children with diabetes in all New York City’s public schools receive the care they need to attend school,” said Jennifer Fox, the parent of named Plaintiff I.F. “By establishing system-wide obligations and standards of care, this settlement will relieve parents who are short on time, resources, or privilege, of the substantial, often prohibitive, burden of having to individually advocate for their child.”

“This settlement will improve the educational opportunities of more than 1,000 students and families in this city who have struggled to get what they need at school,” said Torie Atkinson, Senior Staff Attorney at Disability Rights Advocates. “DRA is honored to represent these trailblazing clients to secure a remarkable settlement that provides a model for other school districts to meet the needs of students with disabilities, particularly students with diabetes.”

“These reforms represent a sea-change for students with diabetes and their families. With these changes, children with diabetes will be safe as they equally participate with their classmates in school, on the bus, on field trips and in afterschool activities,” said Alan L. Yatvin, Partner at Weir Greenblatt Pierce LLP and longtime American Diabetes Association volunteer. “We appreciate the time, effort, and commitment to change for the benefit of these children and families, shown by the City of New York and DOE attorneys, leaders, staff and medical professionals, in reaching this settlement.”

This case was brought on November 2, 2018, in the United States District Court for the Eastern District of New York, by the American Diabetes Association, the nation’s leading diabetes organization, and three parents of students with diabetes (identified as M.F., M.R., and I.F.) who attend New York City public schools. Plaintiffs are represented by Disability Rights Advocates, the American Diabetes Association, and Weir Greenblatt Pierce LLP. The lawsuit sought an overhaul of the DOE’s systemic policies and practices governing the delivery of diabetes-related care to ensure that all students with diabetes receive appropriate care and can participate in all school programs.

About the American Diabetes Association

The American Diabetes Association is the nation’s leading voluntary health organization fighting to bend the curve on the diabetes epidemic and help people living with diabetes thrive. For 82 years the American Diabetes Association has driven discovery and research to treat, manage, and prevent diabetes while working relentlessly for a cure. Through advocacy, program development, and education we aim to improve the quality of life for the over 133 million Americans living with diabetes or prediabetes. Diabetes has brought us together. What we do next will make us Connected for Life. To learn more or to get involved, visit us at diabetes.org or call 1-800-DIABETES (1-800-342-2383). Join the fight with us on Facebook (American Diabetes Association), Spanish Facebook (Asociación Americana de la Diabetes), LinkedIn (American Diabetes Association), Twitter (@AmDiabetesAssn), and Instagram (@AmDiabetesAssn). 

About Disability Rights Advocates

Founded in 1993, Disability Rights Advocates (DRA) is the leading national nonprofit disability rights legal center. Its mission is to advance the rights, inclusion, and equity of people with disabilities through high-impact litigation, education, and advocacy. DRA is proud to have upheld the promise of the ADA since our inception. Thanks to DRA’s precedent-setting work, people with disabilities across the country have dramatically improved access to health care, employment, transportation, education, disaster preparedness planning, voting and housing. For more information, visit www.dralegal.org.

About Weir Greenblatt Pierce LLP

Weir Greenblatt Pierce LLP is Philadelphia-based, full-service law firm representing businesses and individuals in a variety of practice areas, including: banking and finance, commercial, employment, criminal defense, civil rights, special education and disability rights. For more information, visit https://www.wgpllp.com/.

Federal Court Decision Underscores the Risks of Forwarding Privileged Emails

By: devweb

A recent decision by a United States District Court in California highlights the need for exercising extreme caution when forwarding emails that are subject to the attorney client-privilege. 

In Fourth Dimension Software v. Der Touristik Deutschland, GmbH, the United States District Court for the Northern District of California reviewed a discovery dispute regarding an email that had been sent by the plaintiff’s former in house counsel to the plaintiff’s president, which was then forwarded to a hotel front desk for printing.  The president’s email to the hotel front desk stated: “[p]lease print one copy. I’m waiting at the front desk. Thanks.” 

The plaintiff argued that the email from its former in-house counsel to its president was protected by the attorney client privilege, and that forwarding the email to the front desk of the hotel did not result in a waiver of the privilege.  The defendant argued that the original email was not privileged, asserting that the former in-house counsel was not acting as an attorney for the plaintiff when he sent the email, and that even if he were, the privilege was waived when the president forwarded the email to the front desk of the hotel.

The District Court agreed in part with the defendant, finding that while the attorney-client privilege applied to the original email from plaintiff’s former in-house counsel to the president, the privilege was waived when it was forwarded to the front desk of the hotel.  The Court reasoned that the original email was privileged because at the time the email was sent, the dominant purpose of the relationship between the plaintiff and its former in-house counsel was that of attorney and client.  The Court however found that the attorney-client privilege was waived when the email was forwarded to the hotel front desk because the facts did not show that the plaintiff intended or reasonably expected confidentiality when it forwarded the email to the hotel’s generic email address. The Court stated that by sending the email to a generic email address, any number of hotel staff had access to the email, and the forwarded email did not contain any notice that it should be kept confidential.

The Court’s ruling should be a warning for both attorneys and their clients that forwarding privileged emails to a third party even for the sole purpose of having the emails printed can result in a waiver of the attorney-client privilege. 

Rich Bobbe Secures Complete Exoneration for Client Facing Felony Charges

By: devweb

Weir Greenblatt Pierce partner, Richard T. Bobbe III, secured total exoneration for a client facing multiple serious felony charges, and possibly decades in prison if convicted.

Of the exoneration, Mr. Bobbe said: “(Client) came to our firm nearly two years ago.  After our initial meeting, I knew this was not going to be a case that worked out to a plea.  We had an innocent client who was being falsely accused and it was full speed ahead from day one.  (Client) knew the risks and what he was looking at if we didn’t prevail, and to his credit and his family’s credit, they were on-board.”

The client expressed his thanks to Mr. Bobbe for the result, stating that: “In a time of complete uncertainty, Rich was able to bring comfort and confidence to me and my family.  From our first meeting, Rich’s demeanor and no-nonsense attitude reassured us that we had the right firm fighting for my life.  Rich was direct and truthful with us every step of the way and kept us informed. He was relentless in his pursuit of justice on my behalf, and I will be forever grateful to him.”

Over the course of this case; from the arrest to the withdrawal of all charges prior to trial, Weir Greenblatt Pierce LLP and its attorneys and staff were able to bring their full experience, focus, and dedication to bear on behalf of (Client). Mr. Bobbe explained: “We lived with this case for two years.  The investigation we were able to do early on was vital.  Over time, we were able to present enough evidence to the District Attorney that they ultimately decided it would be against the interests of justice to proceed.  I’ll take sparing a client a trial and securing complete exoneration every single time.”

If you, a family member, friend, or client have been accused of a crime in Pennsylvania or New Jersey, please contact Rich directly at 215-241-7760 or RBobbe@wgpllp.com to discuss your matter.

Noah Cohen Wins $400,000 Civil Rights Verdict for Wrongfully Imprisoned Client

By: devweb

Senior Associate, Noah Cohen recently secured a $400,000.00 jury verdict for Reed Foster, a Philadelphia citizen who was arrested, falsely imprisoned, and prosecuted based on a police officer’s false statements. Mr. Cohen was Mr. Foster’s attorney for both his criminal and civil cases. To read more about Mr. Foster’s cases, and the important strategic decision they made together, click here to read an article that recently appeared in The Legal Intelligencer.

Weir Greenblatt Pierce Team Secures Dismissal of Fraud Action Over Sale of Philmont Country Club

By: devweb

Weir Greenblatt Pierce (WGP) partners, Walter Weir, Jr., Susan Verbonitz and Alan L. Yatvin, recently secured a complete victory for their clients, Concert Golf Partners and its principal, Peter Nanula, in a fraud action brought against them by developer North Penn Towns (NPT), when United States District Court Judge Karen Spencer Marston granted summary judgment in favor of WGP’s clients on all claims.

The action arose from Concert’s purchase of the Philmont Country Club in 2017.  NPT had been a suitor for purchase of a 61-acre portion of the Club’s property for development of residential homes.  The deal fell apart in September of 2016, and Concert, which purchases distressed golf clubs, infuses capital and manages them back to financial viability, ultimately purchased the entire Club.  Concert agreed to pay off the Club’s debts of nearly a million dollars, make a set of specific capital improvements, estimated to cost approximately $4 million dollars, and agreed to make a further capital improvements of about $5 million upon sale of the development parcel.

NPT sued Philmont Country Club, the non-profit that had owned the Club of the same name, Concert, Nanula and others in the Montgomery County Court of Common Pleas over the sale.  NPT then settled with Philmont, part of which included assignment of Philmont’s non-contractual claims to NPT.  NPT then filed suit in district court against various Concert entities and Ridgewood, a developer working with Concert, alleging violations of federal antitrust law, fraud, breach of contract and conspiracy, On August 12, 2021, Judge Marston dismissed the federal antitrust and conspiracy claims, some of the fraud claims, and claims of aiding and abetting fraud.

NPT then filed an amended complaint asserting fraud, fraudulent nondisclosure, and fraudulent concealment under Restatement (Second) of Torts §§ 550 and 551, and aiding and abetting fraud.  The suit asserted that Concert and Nanula never intended to make the agreed capital improvements and that Concert’s collaboration with developer Ridgewood somehow compromised the sale price of the Club.  There was also a breach of contract claim against Ridgewood arising from an alleged breach of a confidentiality agreement.

In her July 28, 2022, Opinion granting summary judgment as to all defendants on all counts, except the breach of contract claim against Ridgewood, Judge Marston agreed with WGP that the fraud claim asserting misrepresentations as to the capital improvements was barred by the gist of the action doctrine, because the allegations of fraud involved duties that were outline in the sales agreement.  Because the action sounded in contract, not tort, the fraud claims were barred. 

NPT’s fraudulent concealment and non-disclosure claims under the Restatement (Second) of Torts related to alleged failure to disclose and actively concealing that Concert and Ridgewood were working together.  Judge Marston dismissed these claims after concluding that Concert and Nanula had no duty to disclose their relationship which was neither material nor basic to the transaction and that Ridgewood was not a party to a business transaction with Philmont.  Finally, because the fraud claims were dismissed as to all defendants, the aiding and abetting fraud claims were also dismissed.

Commenting on the decision, Walter Weir, Jr., said:  “This was an astounding victory for the defendants and represents the best of our judicial system to ferret out and make simple what was an unnecessarily complicated case.”

Read the Full Opinion here: Summary Judgment Memorandum Opinion

Read more about the case in the Legal Intelligencer here: Fraud Claim Over Sale of Philmont Country Club Dismissed

Partners Brett A. Datto And Jennifer Hiller-Nimeroff Obtain Significant Victory For Client In NCAA Eligibility Appeal

By: devweb

Weir Greenblatt Pierce LLP is pleased to announce that it has won a significant victory on behalf of a client who was denied a sixth year of eligibility to play college football this fall.  On July 13, 2022, the NCAA granted the appeal of Brandon Outlaw, who had requested that the NCAA reverse a decision by the University of Southern California finding him ineligible to play, citing Brandon’s prior participation in both track and field and football.  In reversing the university’s decision, the NCAA found that Brandon had been denied “multiple participation opportunities” due to his financial hardship and the COVID-19 pandemic.  The ruling means that Brandon will be allowed to suit up and play football this fall for the Trojans.

Brandon’s lawyers, Brett A. Datto and Jennifer Hiller-Nimeroff, complimented the NCAA for its swift and careful consideration of the facts of Brandon’s case and noted that both legal and equitable factors played a key role in the matter.  Mr. Datto has been representing athletes at the local, state and national levels for over 30 years, and currently represents several current and former semi-professional and professional athletes in personal and business matters.  Ms. Hiller-Nimeroff is an experienced lawyer with nearly 25 years of litigation experience, representing the interests of individuals and businesses in complex legal matters.