National Roundup

ABA lawsuit against Dept. of Education awaits hearing date

BALTIMORE — The American Bar Association is waiting on a new hearing date in its lawsuit against the U.S. Department of Education for failing to honor loan forgiveness commitments made through a program for attorneys engaged in public interest law. The hearing scheduled for Friday in U.S. District Court in Washington was postponed.

The ABA’s lawsuit names four individual plaintiffs affected by the federal agency’s decision, all law school graduates with six-figure student loan debt who entered public service with the promise from the Department of Education's Public Service Loan Forgiveness Program that if they made timely loan payments for 10 years, their remaining debt would be forgiven.

In its latest court filing, the ABA says the agency's denial has led the organization to face "serious recruiting and retention problems" due to its revocation as an employer under the loan forgiveness program. One program that has had a particularly hard time recruiting attorneys is the ABA's ProBAR initiative, which supports direct legal representation of unaccompanied children along the Texas border.

In a motion for summary judgement filed in August, the Department of Education argued no one currently is eligible to apply for the program. The agency claimed it will certify employers and forgo the remaining balance of a borrower’s student loans only if the borrower has made 120 payments after Oct. 1, 2007 while working at a public service organization. Until then, borrowers may check in with the agency periodically to make sure their employer is eligible for the program, but that is not official until the program is around for 10 years, the agency  the agency says in a combined motion for summary judgment and response to the ABA’s motion for summary judgement.

Borrowers are supposed to receive guidance on their eligibility from FedLoan Servicing, a company hired by the government to administer the loan forgiveness program. FedLoan tells the borrower whether his or her employer qualifies under the program. However, in March, the Department of Education distanced itself from FedLoan Servicing, saying it makes decisions on its own and does not speak for the agency.

The case is American Bar Association et al. v. United States Department of Education, 1:16-cv-02476.

New York
Sonia Sotomayor to speak at Hofstra Law

LONG ISLAND — U.S. Supreme Court Justice Sonia Sotomayor is slated to visit Hofstra University’s Maurice A. Deane School of Law on Oct. 16.

She will discuss her track from the South Bronx to the Supreme Court. The event is open to Hofstra Law faculty, administrators and students.

The program will begin with a conversation with Judge A. Gail Prudenti, Hofstra Law’s dean. Then students in attendance, who were selected by a lottery, will have opportunity to ask Sotomayor questions.

Prudenti said she was “honored to welcome Justice Sotomayor,” adding that the event would be a “memorable day for the members of the Hofstra Law community.”

Hofstra President Stuart Rabinowitz said the program provided “an incredible opportunity for our law students to hear firsthand from a jurist whose life and career have blazed an inspiring trail for them to follow.”

Sotomayor was nominated by President Barack Obama in 2009 and became the court's first Hispanic justice when the U.S. Senate confirmed her later that year.

Prior to that, in 1991, President George H.W. Bush nominated her to the U.S. District Court, Southern District of New York, where she served from 1992 to 1998.

She earned a BA in 1976 from Princeton University, graduating summa cum laude and receiving the university's highest academic honor. In 1979, she earned a JD from Yale Law School, where she served as an editor of the Yale Law Journal.

She served as assistant district attorney in the New York County District Attorney's Office from 1979 to 1984. She litigated international commercial matters in New York City at Pavia & Harcourt, where she was first an associate and later partner from 1984 to1992.

Ruling in dashboard case leaves ‘puffery’ unexamined

ST. LOUIS — The Missouri Supreme Court on Thursday threw out a class action jury verdict against car manufacturer Nissan, saying defects in dashboards didn’t mean its cars weren’t luxurious.

In 2014, a jury in Jackson County found Nissan liable after some models of its Infiniti FX sport utility vehicles had dashboards that bubbled and blistered in the heat. The company offered repairs, but the class action suit alleged that the defects left a stigma on what were supposed to be “premium” vehicles. The award included $652,000 in payments for 326 class members, plus about $1.8 million in attorneys’ fees.

Last year, the Court of Appeals Western District threw out the verdict after finding that Nissan’s descriptions of the Infiniti were “puffery” that isn’t actionable under the Missouri Merchandising Practices Act. On Thursday, the Supreme Court also reached the conclusion that the jury’s verdict was void, but its analysis took a different route.

“The question of whether ‘puffery’ is actionable under the MMPA, as opposed to the common law in which such statements generally are not actionable, is an interesting question worthy of study. But that question need not be decided in this case,” Judge Paul C. Wilson wrote.

Instead, Wilson said, the case hinged on Nissan’s claims that the Infinity was a “luxury” or “premium” vehicle. The defective dashboards didn’t prove those claims were wrong, he said, as the company had never promised that its vehicles were entirely free of defects.

The court’s 6-0 ruling entered judgment in favor of Nissan. Peter J. Brennan of Jenner & Block in Chicago, an attorney for Nissan, couldn’t be reached immediately for comment.

Ken McClain of Humphrey, Farrington & McClain in Independence, an attorney for the class, said he was disappointed with the loss but was pleased that the Western District’s earlier ruling was effectively wiped away.

“Looking at this from a glass-half-full-half-empty standpoint, the result is bad in our individual case for our individual clients, but in regard for the law in general it’s a good result given where the Western District was,” he said.

The Western District’s earlier ruling in the case had marked the first time a Missouri court applied the concept of puffery to claims under the MMPA. Courts have generally held that sellers aren’t liable for making exaggerated claims that can’t be proven to be true or false. The Missouri Attorney General’s Office had argued that the ruling could make it harder to enforce the consumer protection law.

The case is Hurst v. Nissan North America Inc., SC95707.