- Independence Day
Posted July 2, 2008, 6:03 pm by Jim Gerl
Friday is Independence Day. The Fourth of July is a big holiday for our country, and these days we really need a big holiday. Independence Day is also a time to reflect on the concept of independence. For people with disabilities, independence is an important goal. Congress has stated that encouraging independent living for people with disabilities is the policy of the United States government. IDEA, Section 601(c). Indeed, one of the purposes of special education is to prepare children with...
- AT&T gets "roadside assistance" from the Fourth Circuit
Posted July 2, 2008, 12:23 pm
AT&T properly removed a class action lawsuit filed in West Virginia over automoatic "Roadside Assistance" charges under the Class Action Fairness Act of 2005 (CAFA), the Fourth Circuit held yesterday in Strawn v. AT&T Mobility LLC, No. 07-2084 (PDF). After AT&T removed the suit from the Circuit Court of Kanawha County under CAFA, the district court remanded the case, finding that AT&T failed to show that the matter in controversy exceeded the sum or value of $5 million,...
- Florida Offers to Buy U.S. Sugar for $1.75 Billion
Posted July 1, 2008, 1:29 am
Last month, I wrote about the class action filed by employees of U.S. Sugar, who claim that their shares of company stock have been devalued as a result of mismanagement and self-dealing by the company's officers. In 1983, the employees participated in an ESOP (employee stock ownership plan) which traded their participation in a pension plan for ownership of the company's stock, which is not publicly traded. Thus, the employees have to depend on what the company is willing to pay to redeem...
- House resoundingly supports amendments that broaden ADA coverage
Posted June 27, 2008, 11:39 am by cathy mcconnell
- U.S. Supreme Court rules that employers have the burden of persuasion on ADEA's reasonable factors other than age defense
Posted June 26, 2008, 12:58 pm
Employers arguing in ADEA disparate impact cases that their employment decisions were based on "reasonable factors other than age" bear the burden of persuasion, ruled the U.S. Supreme Court on June 19. Meacham v. Knolls Atomic Power Lab., No. 06-1505 (June 19, 2008) (PDF). The RFOA defense provides that "[i]t shall not be unlawful for an employer … to take any action otherwise prohibited under [the ADEA's operative anti-discrimination subsections] where the differentiation is based on...
- SCOTUS Rules in ERISA Conflict of Interest Appeal
Posted June 26, 2008, 2:34 am
An issue that always has to be addressed in ERISA disability claims is the standard of review to be applied to the plan administrator's decision. If the plan language does not confer discretion on the administrator, then the court reviews any decision under a de novo standard. However, if the plan gives discretion, then the administrator's decision is reviewed under an abuse of discretion standard. But there can be another scenario, one that has confounded litigants, lawyers, and courts for...
- Awards, Honors, Bells & Whistles: The definition of FAPE
Posted June 25, 2008, 2:14 pm by Jim Gerl
We were very pleased to learn that this blog is now second in the voting for Best Educational Blog in the hotly contested Blogger's Choice awards. The exposure from being second has gotten us a bunch of new readers. Welcome. Thanks to all those who have voted for us. Those who haven't yet voted can click on the badge on the left side of this blog or you can vote at the following link (note- you must first register with some username and then confirm the registration by email) :...
- Lawsuit Challenges Member's Expulsion from Fraternal Organization
Posted June 21, 2008, 4:33 pm
For the past few months, any story in The New York Times about West Virginia has discussed Don Blankenship or the Supreme Court of Appeals or both. But a story in Monday's edition focused attention on a lawsuit filed in the Circuit Court of Kanawha County (Charleston), West Virginia by Frank J. Haas against the West Virginia Masonic organization and its top officers. Haas v. Montgomery, Civil Action No. 08-C-1035 (May 30, 2008). (In the interest of disclosure, I have known Frank for several...
- Post concerning Hearing Officers
Posted June 20, 2008, 6:11 pm by Jim Gerl
Apparently I haven't mastered this yet. I wrote a post that I thought would appear yesterday, but because I began work on a draft of the post, it appeared on the blog before last week's post. I even used the new bell and whistle of adding a photo right there inside the post. If you missed it because of my error, I'm sorry. Any way, there is a great new post about what hearing officers really do and why they should get more respect. Unfortunately it showed up on the blog bearing the date of June...
- West Virginia: Where Freedom Rings
Posted June 20, 2008, 4:22 am
June 20 is West Virginia Day. Today, I join a number of other West Virginia Bloggers taking part in a challenge to create "A Better West Virginia Day" by defining West Virginia "from the inside out" and to create "new stereotypes" of the state. The only way to eradicate a stereotype is to create a new one. We all know the old stereotype of the toothless, inbred, racist, ignorant hillbilly that persists to this day. The truth is, the vast majority of West Virginians are nothing like the...
- WV Supreme Court Rules in Dissenting Shareholders' Rights Case
Posted June 15, 2008, 2:34 pm
The Supreme Court of Appeals of West Virginia issued a decision on June 13 dealing with dissenting shareholders' rights, an aspect of corporate law that the Court does not often address. In Dodd v. Potomac Riverside Farm, Inc., 2008 WL 2390159 (June 13, 2008), the Court, in a per curiam opinion, considered rulings from the Circuit Court of Berkeley County, West Virginia, which established the fair value of the appellants' shares in a corporation that owned a family farm and the rate of interest...
- When Is A Resignation Not A Resignation?, Part 2
Posted June 14, 2008, 11:00 am
Last week, I wrote about the peculiar wording of Mike Garrison's announcement that he was stepping down as West Virginia University's president, in which he avoided using the word "resign" to describe his departure. It seemed that there was a reason that he did not affirmatively state that he was resigning, which was reinforced by the statement issued by the WVU Board of Governors (it follows Garrison's statement), which acknowledged his departure from the position without using the word...
- 15th Annual Education Law Conference
Posted June 11, 2008, 11:11 pm by Jim Gerl
One of the best ways to learn about special education law is to attend conferences. This is also a good way to network with others who are interested in this ever-growing field of law. I will be at the 15th Annual Education Law Conference in Portland, Maine July 28 to 31, 2008. The University of Southern Maine plus a number of cosponsors put the conference together. In addition to numerous excellent sessions on education law topics, there are strands on higher education, creative use of...
- When Is A Resignation Not A Resignation?
Posted June 7, 2008, 1:14 am
Mike Garrison's "resignation" today as president of West Virginia University presents a timely opportunity to review his employment agreement, including its provisions for severance pay. I put resignation in quotation marks not to be sarcastic, but because Garrison's announcement about his departure was vague. Here is Garrison's statement, in which he says that he will stay in office until September (presumably September 1), but for whatever reason, does not affirmatively state he is resigning....
- Rodriguez Testifies He Was Forced to Accept $4 Million Buyout
Posted June 5, 2008, 11:00 am
The parties in West Virginia University's breach of contract case against former head football coach Rich Rodriguez agreed not to release the videos of the depositions taken in the case, but fortunately for us, there is no such prohibition against releasing the transcripts themselves, as noted by this post from the blog published by the West Virginia University Sports & Entertainment Law Society. So for your reading enjoyment, here are the deposition transcripts for WVU Athletic Director Ed...
- In Further Defense of the Hearing Officer
Posted June 5, 2008, 12:46 am by Jim Gerl
In a recent post, I mentioned the low level of respect accorded due process hearing officers in the world of special education law. I continue to believe that hearing officers are not properly valued, and I have decided to begin a campaign to increase the awareness of what hearing officers really do. When parents and school districts disagree and cannot resolve their differences, they often end up in a due process hearing. If they try to skip the due process hearing and go directly to court,...
- Survivor: Special Education Edition
Posted June 2, 2008, 4:19 pm by Jim Gerl
My recent posts concerning disability discrimination were meant to drive home the point that even discrimination which should be readily apparent can sometimes be missed. On the other hand, sometimes it is just too ridicules to be believed. In case you missed it, newspaper reports indicate that a Florida kindergarten teacher was recently removed by the school board after she had the class vote on whether a five year old, who had been diagnosed with autism spectrum disorder and ADHD, should be...
- U.S. Sugar Employees Claim Company Insiders Cheated Them
Posted May 30, 2008, 1:45 pm
In The New York Times yesterday, Mary Williams Walsh wrote about the situation faced by thousands of employees of U.S. Sugar, who participated in an ESOP (employee stock ownership plan) in 1983, which traded their participation in a pension plan for ownership of the company's stock. But as more employees reach retirement, they have discovered that their shares are not as valuable as they expected. U.S. Sugar's shares are not traded publicly, so their value is determined by what the company is...
- Chesapeake Cancels Plans to Build Regional HQ, Blames WV Supreme Court's Rejection of Appeal
Posted May 29, 2008, 10:38 am
There is already one casualty from the Supreme Court of Appeals of West Virginia's rejection of Chesapeake Energy Corporation's petition for appeal from the $404 million verdict in Estate of Garrison G. Tawney v. Columbia Natural Resources, LLC. Today, Chesapeake announced that it is canceling plans to build a $35 million regional headquarters in Charleston, and blamed the Supreme Court's decision not to hear its appeal. Here is George Hohmann's article about the decision in today's...
- Who Wants to be a (Special Ed) Hearing Officer?
Posted May 28, 2008, 8:06 am by Jim Gerl
After reading this blog for a while, you might be aching to become a hearing officer yourself. Although I have chronicled some of the trials and tribulations of my fellow hearing officers (for example, I have been at conferences where some people spit on the ground when told that I'm a HO; and I have contended that Rodney Dangerfield is the patron saint of due process HOs- "we don't get no respect"), I nonetheless continue to believe that the hearing officer plays a crucial role in the system...