RJ GAUDET & ASSOCIATES L.L.C.
"Let us realize the arc of the moral universe is long but it bends toward justice."
Dr. Martin Luther King, Jr.
Archive for the ‘Uncategorized’ Category
“No Restaurant Complies With Fair Labor Standards Act” And Other Remarks at Workers’ Rights Conference
By Robert J. Gaudet, Jr.
From April 24-25, I attended a nationwide conference on workers’ rights, organized by NELA (National Employment Lawyers Association). The participants arrived from around the country to share experiences representing employees as the “good guys” in the courtroom.
One speaker, a Texas lawyer, remarked, “no restaurant complies” with the Fair Labor Standards Act (FLSA). Aside from requiring employers to pay at least the minimum wage (which is now $7.25 nationally) and one-and-a-half times the regular rate for overtime beyond 40 hours per week, the FLSA also requires employers to give written notice to their employees about their rights to overtime pay. I asked a few other lawyers at the conference if they agreed that all restaurants violate the FLSA. Surprisingly, all of them did. Apparently, virtually every restaurant violates one or more of the FLSA requirements, especially the requirement to give written notice.
The home care industry was identified as a field that needs more litigation to protect the rights of employees. “There are violations everywhere,” a speaker noted, and it is a “growing wild west industry.” About 2.5 million people work in home care and 70 percent of them are employed by private, for-profit companies, many of which do not follow the rules. Companies can earn, for instance, $19/hour for care but pay just $8/hour to care givers. Some companies have engaged in Medicaid fraud which can be grounds for a separate whistleblower, or qui tam, action against the same defendant.
One speaker stated that, in 2016, Texas regulations will bring new rights for a minimum wage and overtime for employees who provide elderly care. The speaker also predicted that more workers will be put on fluctuating workweek schedules in 2016.
Speakers shared useful tips. One advised that plaintiff’s lawyers should, when they start representing a client with a new grievance, file a FOIA request with the Department of Labor to find out if there were any previous complaints against the same employer. Another speaker said she might discuss settlement with a defendant before filing a complaint but she will ask the defendant to enter into a tolling agreement. That way, her clients are not penalized under the statute of limitations for taking time to negotiate.
The United States Solicitor of Labor, M. Patricia Smith, spoke at the conference. She noted that, after the Obama Administration releases an overtime rule, staff will next prepare Administrative Interpretations. The Bush Administration had revamped the FLSA by issuing Opinion Letters on the day before President Bush left office. The Obama Administration will not issue Opinion Letters but rather prefers Administrative Interpretations, which will be issued in the near future. The Obama Administration has, so far, issued roughly 100 Fact Sheets, which are available at the Department of Labor’s website (www.dol.gov).
As did other speakers, Ms. Smith noted a common violation of FLSA is the misclassification of workers as “independent contractors” when they are, in fact, employees. She said this problem is especially prevalent in the construction industry. Ms. Smith related that, in an Arizona Tract case in Arizona and a GSA Systems case in Utah, the Department of Labor obtained consent judgments against companies that had misclassified employees as “owners” of the LLCs when, in fact, they were simply employees.
Janitors and cleaning personnel are often misclassified as “independent contractors” when, in fact, they are employees with legal rights to compensation under the FLSA. Similarly, cable installers and health care works are often misclassified. Ms. Smith noted that the home care industry will see a 40 percent increase in the next years for both the elderly and disabled.
In a separate panel discussion on arbitration, speaker Shannon Liss-Riordan noted that 40 percent of companies are inserting mandatory arbitration provisions into their employment agreements. That is a stark increase from several years ago when it was closer to 16 percent. The result is that employees, now, have less access to courthouses. They are increasingly forced into arbitration to settle legal disputes with employers.
Another speaker noted, “arbitration is faster and cheaper” with some advantages over traditional litigation. The speaker advised that lawyers should “go for it.” Among other things, employers are required to pay for the cost of arbitration under the AAA and JAMS rules.
With a wide variety of speakers including a government representative, private practitioners, and a judge, the NELA conference covered the basics of wage and hour law but offered enough sophistication for veterans, like Jac Cotiguala of Chicago who’s belonged to NELA for decades, to learn about new legal developments. The conference, called “Protecting Pay: Representing Workers With Wage & Hour Claims,” took place in The Sphinx Club in downtown Washington, D.C.
Because I practice in El Paso, I was interested in what participants thought about the risk of deportation for illegal immigrants who stand up for their rights. During her remarks, Ms. Smith said the Department of Labor (“DOL”) has a Memorandum of Understanding with Immigration and Customs Enforcement (“ICE”). ICE sends DOL a list of names to DOL before it does a workplace audit. ICE then “stand[s] down,” stopping any deportation proceedings against illegal immigrants if there is an DOL investigation into an employer’s violations of labor laws against the same people.
I asked a few private lawyers if their clients had ever been deported or if they had ever seen that happen as a result of the clients’ participation in private lawsuits. They said no. One lawyer from a large employment firm had not seen that happen. A senior lawyer with decades of experience had, also, not seen illegal immigrants ever deported for participating in a private lawsuit. The consensus seemed to be that illegal immigrants who file lawsuits under the FLSA are not at risk for deportation unless they have been convicted of felonies.
On the day immediately before the conference, some NELA members, including myself, consulted with elected officials and their staff in the U.S. Congress. Another member of NELA and I met with Counsel for Senator John Cornyn (R-TX), in the Hart Senate Office Building, to discuss the Arbitration Fairness Act and the Civil Justice Tax Fairness Act.
After the conference, the exchange of practical and legal ideas has continued through the vigorous NELA listservs. As it turns 30 years old, NELA has become a valuable resource for lawyers who care about the rights of employees.
Robert J. Gaudet, Jr. Sworn Into Texas Bar By Judge Dominguez
On April 21, 2015, Judge Francisco Dominguez of the 205th District Court, a Texas state court, swore Robert J. Gaudet, Jr. of RJ Gaudet & Associates LLC into the Texas bar. Here is the video footage on Twitter and here is a separate link: TX Bar swearing in judge dominguez The swearing-in took place inside Judge Dominguez’s chambers inside the El Paso County Courthouse. Judge Dominguez was recently elected by El Pasoans and took the bench in January 2015. He formerly represented plaintiffs and employees in private practice.
Swearing in Mr. Gaudet to the Texas Bar
Mr. Gaudet and Judge Dominguez immediately after the swearing-in.
The swearing-in took place within the El Paso County Courthouse which holds courtrooms as well as the District Attorney’s Office. The bottom level holds a cafeteria that serves burritos with chorizo and egg, a rarity among government buildings in the United States. RJ Gaudet & Associates LLC announced Mr. Gaudet’s swearing in with a Tweet that garnered a reply, on the same day, from the State Bar of Texas which Tweeted, “Congratulations!” As the state bar’s reply shows, Texas is truly a friendly state.
Exterior of the El Paso County Courthouse
Inside the El Paso County Courthouse, there is a statute of lady justice within the entrance. She serves as a reminder of the ultimate purpose of the courts, the role of lawyers, and the judicial system. She is colored with natural light from skylights in the roof.
Lady Justice stands inside the entrance to the El Paso County Courthouse
Coinciding with the swearing-in of Mr. Gaudet, the firm is pleased to announce the opening of a new address at 309 East Robinson Avenue, El Paso, Texas 79902. In addition to this new El Paso address, the firm maintains addresses in Seattle and The Hague as well as a correspondence address in London.
From the firm’s office in El Paso, Mr. Gaudet is working with the Kern Law Firm on a Fair Labor Standards Act (FLSA) class action in the U.S. Court of Claims in Washington, D.C. on behalf of customs and border patrol agents in El Paso and other locations who were not compensated for mandatory time that they spent studying in order to gain certifications required for their jobs. The defendant is the U.S. Government.
RJ Gaudet & Associates LLC welcomes referrals and inquiries about class actions, civil rights, wage and hour employment, and other legal matters.
From American courtrooms to a Croatian Presidential inauguration
The past year was eventful for RJ Gaudet & Associates LLC. Some of the cases we’ve been working on for several years have come to a close or are near-closing. In 2014, the firm’s main operations shifted from Europe to the USA to be able to work on some of the firm’s cases that were heading towards trial more intensively. The firm still maintains its main office in Seattle with a branch in The Hague and Of Counsel and consultants located in various states and countries.
The first case worth mentioning in this overview is a case [case No. 12-cv-01496] against several defendants* regarding civil RICO, unfair competition law, breach of contract, and other claims, which was filed in the US District Court for the Central District of California. The plaintiffs do business in equestrian fashion, selling horse supplies and accessories as well as horse riding apparel. They extended their market to North America, but their business agents and competitors ruined this plan by stealing, committing fraud, and misleading the plaintiffs. In mid-2014, most of the defendants opted for a settlement. In late 2014, two defendants agreed to a stipulated judgment of $150,000, which will be enforceable in case these two defendants do not pay the scheduled installment payments.
Robert Gaudet at the District Court for the Central District of California, located in Santa Ana, Orange County.
A second case we worked on extensively during the past year was an employment discrimination case against Port of Seattle, which was filed in the US District Court for the Western District of Washington [case No. 2:13-cv-00545]. Mr. Gaudet was in Seattle to take and defend depositions, prepare for trial, and attend trial. The firm was successful in defending many of the claims against the Port of Seattle’s motion for summary judgment. Only less than 2% of civil law cases in federal courts go to trial, which means most cases do not get past the motions to dismiss or for summary judgment or are settled. Defense counsel noted in a brief that Mr. Gaudet litigated like a big law firm. Mr. Federici assisted with the proceedings before trial while other co-counsel assisted with the trial in federal court in Seattle. The trial started in the beginning of September and lasted for about two weeks. Many witnesses were served with subpoenas to deliver testimony. Unfortunately, the jury did not decide in our client’s favor.
Robert Gaudet at the US District Court for the Western District of Washington, located in Seattle.
A third case that we spent time working on in the past year was a case against American Medical Systems (AMS) [case No. 2:13-cv-23053] regarding a defective transvaginal mesh product or, more specifically, the Monarc Hammock which eroded inside our client and required multiple surgeries to remove. The case is being handled by the US District Court of the Southern District of West Virgina, in history’s largest MDL (multi-district litigation). With the assistance of co-counsel, we settled this case. A motion to dismiss will soon be filed. Women with similar problems should contact our firm through the contact form on this website.
Robert Gaudet & Karin Gaudet-Asmus together with trial counsel in the federal court room in Seattle, WA.
Finally, the US Court of Appeals for the Ninth Circuit decided in April 2014 on a case the firm had worked on. Mr. Gaudet objected to a class settlement that class counsel had agreed on with Apple, Inc. for their defective powercord adapters. The District Court approved the settlement, and requested objectors to post a bond. Mr. Gaudet appealed the decision of the District Court and pointed out in briefing – among other things – that the class counsel (the lawyers representing the class) were paid too much in attorney’s fees while the compensation for the class members themselves (the people who had bought defective powercords) was insufficient. The Court of Appeals vacated the settlement and sent the case back to the District Court to reassess the settlement.
Robert Gaudet in front of the US Court of Appeals for the Ninth Circuit, located in San Francisco, CA.
Some personal highlights of the past year are the following:
o Ms. Tatjana Ribic, Legal Consultant, is working as a member of the Serbian Republic Commission for the Protection of Rights in Public Procurement Procedures. In the fall of 2014, she attended a 10-day training session in The Hague on public procurement issues, especially in connection with the rule of law. The training was one of MATRA’s Pre-Accession Training Programs, funded by the Dutch government and provided by T.M.C. Asser Institute, to help accession states, such as Serbia, with the implementation of the EU Acquis. Ms. Ribic kept up-to-date with European public procurement developments and also gave training on public procurement issues through Paragraph, a private Serbian company.
o Mr. Joe Federici, Of Counsel, left his position as counsel for the American University of Afghanistan and enrolled in the School of Foreign Service at Georgetown University. He started an internship at the United States Senate Committee on Foreign Relations and still serves as the co-chair of the Human Rights Committee of the Section of International Law of the ABA. Mr. Federici worked intensively on a couple of the firm’s cases, including the Anitei v. Port of Seattle for which he drafted a motion to compel that was granted in part. He also worked on discovery matters for the Equine Industry et al v. Juan Ayora et al case and successfully responded to motions to dismiss.
o Prof. Ingrid Detter de Frankopan, Of Counsel, published a new copy of her book, The Law of War. She will open up her French estate for an Academy of War Studies (AWS), which will be incorporated as a charity in England. The point of AWS is to have high level discussions and seminars to reduce the chance of armed conflict. We will keep you posted on any news regarding AWS. Prof. Ingrid Detter de Frankopan will continue to practice law in various jurisdictions. As a licensed lawyer in the UK and Sweden, she also assists the firm with Barboni v. Argentina on behalf of bondholders whose May 2004 Euro Medium Term Note program bonds are governed by English law. Prof. Detter de Frankopan was present at the inauguration of the new President of Croatia, Ms. Kolinda Grabar-Kitarović, in February 2015. Ms. Grabar-Kitarović is the first female head-of-state of Croatia since it entered a non-communist era in 1990.
Prof. Detter de Frankopan posing next to the guards on the day of the inauguration of the Croatian President.
o Ms. Gaudet-Asmus, legal consultant, is applying for LL.M. programs because an American LL.M. degree will make her eligible to become a licensed lawyer in the US. In the meantime, Karin will keep working for the firm. Moreover, she will teach Dutch language and culture courses at the University of Texas, El Paso this upcoming summer. She is also volunteering part-time for Las Americas, a local advocacy center which assists asylum seekers, victims of crime, and other immigrants with legal immigration matters.
o Mr. Gaudet, a lawyer who is licensed in Washington state, is seeking admission to the Texas bar. He is currently working on federal cases, including Barboni v. Argentina regarding Argentina’s default on its bonds. Mr. Gaudet also worked with a Texas law firm to revise the job description of the Dallas County Court Reporters Association in conformity with the Fair Labor Standards Act. Moreover, Mr. Gaudet recently started to assist with prosecution of a class action in the U.S. Court of Federal Claims in Washington, D.C., Almanza v. United States. It is a Fair Labor Standards Act and Customs Officer Pay Reform Act opt-in class action against the US Government on behalf of Customs and Border Patrol Agents. Even though the firm’s main activity moved to the US, Mr. Gaudet wants to keep the strong ties the firm has with Europe and is interested in assisting lawyers in Europe to increase access to justice for plaintiffs in Europe. For instance, he is now cooperating with a firm in Europe to obtain information that may be useful to prosecute transvaginal mesh cases in European national courts.
The firm continues to seek justice on behalf of people who have been injured and to contribute to broader global issues of human rights, peace, and advocacy. The firm and its colleagues have dedicated a large portion of their time in the past year to public service and pro bono matters.
[* defendants to the lawsuit were: Juan Ayora, Ernest Nick Collins, Kathleen Collins, D5 Global Inc, Does, Christa L Endicott, Michael Endicott, Tal Goldstein, Jill Humphrey, Megan Hunt, Martina Lazorova, Rudy Leone, Leone Equestrians Inc, Ocean Point Equestrian, Pegasus Show Stables Inc, Rolling Meadows Inc, Deirdre Seeds, Erin Seeds, Lisa Sweet, Monica Ward-Hiett, Allon Equestrian LLC, Juan Ayora and Ayora LLC]
No access to justice in the US for Dutch victims of vaginal mesh products
Recently, a Dutch TV show for consumers, Radar, featured a report on how easy it is for manufacturers of medical devices, such as transvaginal mesh products, to have their product approved for the European market. Back in 2012 this TV program broadcasted a show informing Dutch consumers about faulty transvaginal surgical mesh slings that were used to treat pelvic organ prolapse and stress and urinary incontinence.
In the United States, more than 40,000 patients individually brought cases against the manufacturers of these same defective medical devices. These cases from all over the US were assigned to one court, the United States District Court for the Southern District of West Virginia. By aggregating the cases through a special federal legal procedure called Multidistrict Litigation (MDL), the process of handling these complex cases has been speeded up.
Of all these cases, at least twenty were filed by injured individuals from New Zealand. The defendants, manufacturers Ethicon, Inc. and Johnson & Johnson, Inc., moved to dismiss their claims based on the forum non conveniens doctrine. Forum non conveniens is a doctrine that permits a district court to dismiss (or transfer) a case if the current forum, the US, is inconvenient. Defendants have to show that there is an adequate alternative forum, meaning that forum (here: New Zealand), is (1) available, (2) adequate, and (3) more convenient in light of the public and private interests involved. [1]
In the case of the New Zealanders, Judge Goodwin decided the motion to dismiss on February 18, 2014 (Solvander v. American Medical Systems, Inc., 2:13-cv-19418, MDL No. 2325, Doc. 13). The court granted the motion to dismiss, after deciding New Zealand fulfills all the requirements of an adequate alternative forum. Technically, the motion to dismiss was filed only by defendants Ethicon, Inc. and Johnson & Johnson, Inc. American Medical Systems (AMS) did not file a similar motion. However, most likely, the same holding would apply to the claims against AMS because the court’s February 18 decision was filed on the AMS docket and the same reasoning would apply.
After analyzing Judge Goodwin’s decision to dismiss the cases of the New Zealanders, RJ Gaudet & Associates LLC believes the court would similarly dismiss cases brought by injured Dutch victims against manufacturers of faulty medical devices in the US, at least as long as their circumstances are similar to the circumstances of those of the New Zealanders, e.g. they were treated outside the US.
As a summary, the US legal system most likely does not allow Dutch victims of faulty vaginal mesh products to claim damages in the US, as any case that would be filed in the US could be dismissed on request of defendants by the judge on the grounds of forum non conveniens. Dutch victims will have to pursue access to justice in the Netherlands, instead.
As for the thousands of existing claims, on February 5, 2015, the court in West Virginia will hold a status conference. The court has required defendant client representatives “with full authority to make all decisions related to MDL 2325” against AMS to attend. In the US, RJ Gaudet & Associates LLC represents clients against AMS over defective transvaginal mesh products, e.g. the Monarc Hammock.
Eduard Shevardnadze’s Contribution to International Human Rights
By Prof. Dr. Ingrid Detter de Frankopan
Due to the recent passing of Eduard Shevardnadze, it is fitting to remember his enormous contribution to the field of international human rights during a time in which the Soviet Union had not accepted the jurisdiction of the International Court of Justice with respect to human rights agreements. His vision led the Soviet Union to the recognition of international human rights instruments with long-term impact.
The Communist regimes with which Mr. Shevardnadze worked had one obsession that made all other principles fade away in comparison: the State decides. That meant that if the State (= the Communist Party) decided on an action, the validity and usefulness of that could not be questioned. Above all, the consequences of this exaggerated stress of the importance of State power implied that rules of international law had no effects at all inside a State.
Mr. Shevardnadze moved the Soviet Union towards accepting the jurisdiction of the International Court of Justice with respect to human rights agreements.
On the one hand, the communist doctrine predicted the ‘withering of the State’; this was an important idea of Lenin (and Marx & Engels) but this was somewhat marginalized under Stalin to whom the notion of a strong communist State was paramount.
On the other hand, the function of international law was, to the communists, merely a system of relationships between States with no internal effects at all: to even discuss Human Rights in another State was seen as illegitimate interference or illegal ‘intervention’. Numerous protests in the General Assembly of the United Nations during the time of the Soviet empire show how sensitive communist leaders were when it came to discussion of human rights inside their countries.
This was the attitude of the entire communist bloc in Eastern Europe plus China and Cuba. Even other non-communist States had adopted similar views, often under the guise of claiming to have a ‘dualist’ view of the relationship of internal law and the international legal system. For example, Sweden, under a socialist government, resisted any attempt to allow the incorporation of international standards without a formal ‘transformation’ into municipal law. Traditional textbooks in international law claimed that there were no ‘intrinsic’ rules on human rights: all would have to be incorporated into Swedish legislation to be operative. This was the case until I was nominated in 1988 to the Lindhagen (ironically Lindhagen was the Mayor of Stockholm who welcomed Lenin to Stockholm in 1917!) Chair of International Law at Stockholm University when I published my own textbook (The International Legal Order, 1st ed., 1990); the Prefect of Law Faculty suggested I should remove the three pages on ‘intrinsic’ rules as this view was ‘not compatible with Swedish law’. Rather than agreeing to this, I expanded these views into three chapters and then resigned from the professorship in 1995.
But before then, in 1989, the eminent Foreign Minister of the USSR, Eduard Shevardnaze, made an astonishing announcement: the USSR decided to ratify the UN Covenants on Human Rights. As I mention in my International Legal Order in the following lengthy excerpt is appropriate to quote at this time as an explanation of Mr. Shevardnadze’s significant impact on international human rights:
“A noteworthy statement was made by the then Soviet foreign minister Shevardnaze on 9th March 1989, in connection with the ratification, by the Soviet Union of the United Nations Covenants on Human Rights: also the Soviet Union – although it adhered to the dualist doctrine – admitted the supremacy of rules of international law on Human Rights. The document does not limit this supremacy to only basic Human Rights but states that, as a system, international law is higher than national laws. The Soviet Union notified the United Nations of the withdrawal of its earlier reservations concerning the compulsory jurisdiction of the International Court of Justice in respect of agreements relating to Human Rights. The Representative of the USSR asked, in an accompanying note, that the letter of Mr Shevardnaze be distributed as a document of the General Assembly and Mr Shevardnaze himself, who obviously attached considerable importance to the statement, asked the Secretary General, as depository of the relevant Human Rights treaties, to distribute his letter `as an official document of the United Nations’. He wrote
`The Soviet Union, which attaches great importance in present circumstances to enhancing the role of the International Court of Justice in world affairs, has begun to consider the question of withdrawing the reservations which it made previously to a number of international treaties concerning the jurisdiction of that judicial organ. Given the importance of the further promotion of co-operation among States in the humanitarian sphere, it was deemed desirable to begin the process by dealing with Human Rights agreements.’
In the light of the above, on 10th February 1989, the Presidium of the Supreme Soviet of the USSR adopted a decree whereby the Soviet Union accepts the compulsory jurisdiction of the International Court of Justice in respect of the following international treaties: the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, the 1952 Convention on the Political Rights of Women, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1979 Convention on the Elimination of All Forms of Discrimination against Women, and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Soviet Foreign Minister Mr Shevardnaze then went on to underline the reasons for this change in Soviet acceptance of the compulsory jurisdiction of the International Court of Justice and commented on the revised attitude of the Soviet Union to international law in general. He said
`In taking this decision, the Soviet Union was guided by the desire to strengthen the international legal order, which upholds the primacy of law in political affairs. In advocating the primacy of international law, we take the position that international legal norms and obligations of States take precedence over their domestic enactments.’[1] (Emphasis added.)
This is a forceful statement which underlines the primacy of international law. The Soviet Union was one of the communist States which had earlier claimed that sovereignty implies full freedom of the State to act. But this indicates that, even if a State with such views on sovereignty, there are certain important basic rights in international law which must not be set aside in internal legislation.’ (International Legal Order, 2nd ed., London, (Dartmouth), 1994, pp 172-174)
The legacy of Mr Edward Shevardnaze will go down to history as a brave man who, eight months before the fall of communism, defied one of the most fundamental precepts of communism, the one about the primacy of national laws above intrinsic and fundamental rules on human rights in international law!
Prof. Dr. Detter de Frankopan receiving the Great Seal of Poznan in Poland, March 2013, for her international legal work, charity, and contributions to the Catholic Church.
About the author: Prof. Dr. Ingrid Detter de Frankopan is a Barrister in the United Kingdom who has represented a sovereign nation before the International Court of Justice and formerly served as legal advisor to the Holy See. Her latest book, The Law of War (3d ed.), was the subject of a book launch in June 2014 at Oxford University. She represents private parties in international commercial arbitration and other disputes.
[1] General Assembly document A/44/171, 9th March 1989.
Robert J. Gaudet, Jr. Bids Farewell to Maynooth, Ireland
On November 16, 2013, Robert J. Gaudet, Jr., resigned from his post as lecturer at the National University of Ireland Maynooth to pursue other activities including his international legal practice, RJ Gaudet & Associates LLC, with offices in Seattle and The Hague. Mr. Gaudet served as lecturer in the Department of Law from February 2012 until November 2013. He was also elected to the Executive Committee of the Maynooth branch of the Irish Federation of University Teachers (“IFUT”). “I was greatly impressed by IFUT and their hard work at protecting employees during this difficult time of austerity,” said Mr. Gaudet.
Mr. Gaudet in front of Pugin Hall at National University of Ireland Maynooth after graduation ceremony for law students on 30 October 2013.
Mr. Gaudet taught European Union Law and International Human Rights to undergraduates and post-gradutes in the LL.M. and MLS programs. One student, Patrick Field, reported, “Mr. Gaudet gave great encouragement whilst lecturing in EU law. His Socratic style of lecturing was engaging and beneficial.” Guest lecturers in Mr. Gaudet’s course included former European Commissioner Charles McCreevy and Member of European Parliament Mairead McGuinness.
“It was a privilege to teach students at Maynooth and contribute to the public dialogue in Europe over access to justice,” says Mr. Gaudet. With the support of Members of European Parliament Marian Harkin, Pat “the Cope” Gallagher, and Daniel van der Stoep, Mr. Gaudet organized a conference inside the European Parliament that took place from 12-13 November 2012, titled “Increasing Access to Justice With E.U. Class Actions: A Conference For Litigators and Policy-Makers.” The conference was jointly presented by Maynooth’s Department of Law with the American Bar Association Section of International Law and law schools in Portugal, France, and Spain. The keynote speaker was a former Vice-Chair of the European Parliament, Diana Wallis.
While in Ireland, Mr. Gaudet was elected to the position of Counsel of Democrats Abroad Ireland which is a Country Committee of the Democratic Party Committee Abroad with the purpose of advancing the cause of the Democratic Party. Mr. Gaudet worked with James Connell to prepare revisions to the bylaws of Democrats Abroad Ireland. The revisions should clarify certain voting procedures and bring the bylaws up-to-date with changes to the Democrats Abroad Charter. The revisions are expected to be considered by the membership at an annual meeting.
Mr. Gaudet will continue to advocate for increased access to justice in Europe and work on behalf of clients in human rights and international law cases. He currently represents clients in employment discrimination, business litigation, and product liability cases before United States federal courts.
Joseph P. Federici, Accomplished Lawyer & Naval Academy Coach, Joins Firm
RJ Gaudet & Associates LLC is pleased to announce that Joseph (“Joe”) P. Federici recently joined the firm as Of Counsel. Mr. Federici will assist the firm with various cases. Mr. Federici is an American lawyer, licenced in New Jersey. He is based in Afghanistan. From that base, he conducts legal research, works on briefs, provides legal advice, and leads a committee of over 600 lawyers belonging to the American Bar Association’s International Human Rights Committee.
Robert J. Gaudet, Jr. is glad to have Mr. Federici as a colleague. Mr. Gaudet says, “Joe has all the qualities of a great lawyer: he’s detailed, calm and creative. From past experience, I can say Joe is reliable and a hard-worker. And of course, we share a common interest in Human Rights. He is a great guy.”
Ingrid Detter de Frankopan, Robert J. Gaudet, Jr., Karin Asmus, Joseph P. Federici at a conference on class actions in the European Parliament, Brussels, November 2012.
Mr. Federici and Mr. Gaudet met through the International Human Rights Committee, which is part of the Section of International Law of the American Bar Association. Mr. Gaudet was co-chair of the committee when Mr. Federici joined several years ago. In the past couple of months, Mr. Federici became co-chair of the committee. Mr. Federici met members of the firm at a two-day ABA conference on “Increasing Access to Justice Through E.U. Class Actions: A Conference For Policy-Makers and Litigators” that Mr. Federici and Mr. Gaudet organized within the European Parliament in Brussels in November 2012. Karin Asmus, who also helped organize the conference, met Mr. Federici over the phone during preparatory meetings and, later, in person in Brussels. Prof. Dr. Ingrid Detter de Frankopan, who is Of Counsel, moderated a panel discussion on Class Actions to Enforce Environmental Law.
Joseph Federici making closing remarks at the Brussels conference on class actions.
Mr. Federici graduated from Rutgers School of Law in 2008 and, then, served as a law clerk to the Hon. Benjamin C. Telsey, J.S.C. Mr. Federici previously worked for The Williams Law Firm, P.A. and Wise and Donahue, PLC. Mr. Federici currently works for the American University of Afghanistan. From 2008-2012, Mr. Federici was the head coach of the University of Delaware Men’s Lightweight Crew team. He was recognized as “Mid-Atlantic Coach of the Year” by the American Collegiate Rowing Association. From 2012-2013, Mr. Federici served as the assistant coach of the United States Naval Academy lightweight rowing team in Annapolis, Maryland. His biography is available at this link.
Joseph Federici inside the European Parliament buildings in Brussels, Belgium.
Mr. Federici has assisted RJ Gaudet & Associates LLC with a complex litigation against over 20 defendants in a federal court in California. He has conducted legal research and drafted a brief in opposition to a dispositive motion. According to Mr. Gaudet, “I am very grateful to have the opportunity to work with Joe. He thinks clearly and identifies issues that require closer inspection. He is easy to work with.” The members of the firm are enthusiastic to have an opportunity to share their interest in human rights and advocacy with Mr. Federici.
Banking By Mobile Phone in the Developing World
Banking By Mobile Phone – Transferring Funds via Text Messages in the Developing World
By Aoife Keenan[i]
I. BACKGROUND
“Mobile payments” refers to a method by which subscribers can transfer money in real time via text message.[ii] It has become the “new” way of banking in the developing world over the past ten years. In poor, rural areas of the developing world, there is limited access to banking services. Lack of infrastructure and funding, geographical constraints,[iii] illiteracy, a lack of basic requirements such as relevant paperwork, the danger of travelling to deposit money (considering highway robbery occurs frequently), a lack of security and collateral for loans and mistrust of banks and their bureaucracy have left a massive proportion of the world’s population unbanked. Their unbanked status has created a niche for mobile payments.
Mobile payments allow unbanked people to avail themselves of banking services at their doorsteps without necessarily requiring access to any bank account. This method permits the direct transfer of money from one mobile telephone number to another. Withdrawals and deposits are made in a variety of locations, including corner shops and pharmacies that sell prepaid mobile phone credits.[iv] It is possible to make transfers over large distances, saving customers time and money, as well as negating the risks of travelling with money. Groups who previously travelled to pay off micro-finance loans can now do so via mobile payments, eliminating time, cost and danger.
II. REGIONAL EXAMPLES
Mobile payments have been used in a variety of different countries, including but not limited to Kenya,[v] South Africa, Philippines, India and Nigeria. See Table I infra. The widespread use of the mobile payments method indicates its success. The success, however, varies in each place depending on a number of varying factors such as: (1) alternative means of banking and making payments; (2) regulations; (3) the number of mobile phone users; (4) type of financial institutions in place; and (5) implementation plan. However, on the whole, it appears the model is successful in developing countries. The method has not been as successful in developed nations, such as the United States, where there are other options and banks are easily accessible. In Japan, however, mobile payments are used.
In Kenya, M-PESA originated as a person-to-person funds transfer service but has diversified into other areas, such as salary and bill payments. M-PESA also enjoyed a 4,627 percent increase in monthly transactions over two years, which led to growth in the value of monthly transactions in Kenya by 3,671 percent. It has also created job opportunities in the form of agents across the country.[vi] MTN mobile money in Uganda has over 1 million customers and 1,500 agents and has transferred over $245 million.[vii] These statistics show that although mobile payment models have encountered many obstacles, they have been successful in many developing countries.
TABLE I
Companies Providing Mobile Payment Services
Mobile and Card-Based Technologies for Remittance Transfers and Payments
| Company | Description | How It Works |
| Company: Celpay | SIM-based mobile phone payment systemCountries: Zambia, Democratic Republic of Congo | ‘A Celpay SIM card provides the Celpay menu. Funds are deposited in a Celpay account, using the cell phone to transfer from a bank account or, if the user is unbanked, depositing cash at a partner bank. Purchases can be made via SMS by entering the amount to be paid into the phone and authenticating the transaction with a PIN. The service provider instantly transfers the money to the merchant’s Celpay-enabled account. Merchants pay a commission of 3.4 percent of the total transaction amount.’ (UK DFID & USAID, at 2.) |
| Company: G-Cash | Mobile phone-based money transfer service provided by Globe Telecom (GTel)Countries: Philippines, in partnership with Bahrain, Hong Kong, Italy, Singapore, Taiwan, and U.K. | ‘GTel mobile phone subscribers register via text message. Funds can then be deposited and cashed at G-Cash affiliates and GTel offices throughout the network. Funds transfers (from sender to recipient and from G-Cash account to payout in cash) are communicated via text message. A 1 percent processing fee is charged both to deposit and to receive funds (i.e., 2 percent total for a remittance transfer).’ (UK DFID & USAID, at 2.) |
| Company: SMART Money | Description: Mobile phone-based SMS money transfer service and linked debit card. Smart Padala is a branch of SMART Money.Countries: Philippines | ‘SMART Money is provided by SMART, a mobile phone company in the Philippines, in partnership with MasterCard. The service enables users to transfer money from a bank account to a SMART Money account. Subscribers can then use a SMART Money card like a debit card to pay for goods and services at a network of retail stores and restaurants, or to make withdrawals from ATMs. The service also allows users to transfer cash from one SMART Money card to another via SMS. For remittances, workers outside the Philippines can deposit funds at any of the phone company’s remittance partners in 17 countries. A 1 percent processing fee is charged.’ (UK DFID & USAID, at 2.) |
| Company: SVA | Countries: Currently pilot testing in Ecuador, El Salvador, and Mexico; planned expansion to Asia, Caribbean, East Africa, and South/Central America; signed alliance agreement with Banco Solidario to link payout locations in Bolivia, Ecuador, and Peru | ‘Funds from SVA (closed system) cards can be transferred in real time to bank-issued debit (open system) cards, which can be used for ATM withdrawals, signature based purchases, and card-not-present transactions. Also allows for direct deposit of payroll checks and for bill payment without a bank account.’ (Mendoza & Vick, at 556.) |
| Company: NTT-DoCoMo i-Mode FeliCa | Description: Cell phones with embedded multi-application smart chipsCountries: Japan | ‘Phones are loaded with cash deposits at terminals. The phones can be used as pre-paid electronic cash, credit cards, travel tickets, access control cards, authorizations to access corporate networks, or entry cards such as for club memberships or loyalty programs. Selected information— the remaining electronic cash balance, for example, or transaction records—can be displayed offline on the cell phone. Transactions are completed at POS terminals that deduct the amount of a purchase or read other information from the embedded chip.’ (UK DFID & USAID, at 2.) |
| Company: WIZZIT | Wizzit is a mobile banking provider. It provides a bank account that is accessible via mobile phone and card.Countries: South Africa | ‘Customers use their mobile phones to make person-to-person payments, transfer money, purchase prepaid electricity, and buy airtime for a prepaid mobile phone subscription… Partner banks equip small shops, such as lottery outlets, post offices, supermarkets, petrol stations, and other retail outlets, with a point-of-sale (POS) device, such as a card reader or PC connected to a mobile phone. At these outlets, customers can open or access a variety of accounts, including savings, credit, insurance, money transfers, government benefits, and bill payments.’ (Mendoza & Vick, at 556.) |
| Company: E-ZWICH | Description: E-zwich is a mobile banking providerCountries: Ghana | ‘The mobile-banking platform combines payments, banking and real-time, two-way data transmission for on-the-move, ubiquitous access to financial information and services. This concept of providing financial access to the poor through mobile-banking services is similar to the e-zwich services introduced by the Ghana Inter-bank Payment Systems (GIPS). E-zwich is an electronic platform that enables loading and spending of e-cash, and also allows the settlement of inter-bank claims in addition to online transactions. The mobile-banking platform aims at bridging the gap between the banked and the unbanked consumers in Ghana.’ (Hinson, at 328.) |
Sources: UK DFID & USAID, at 2; Hinson, at328; Mendoza & Vick, at 556.
III. LEGAL FRAMEWORK
In legal terms, mobile payments have been enabled by companies’ internal rules; inter-company private contractual agreements;[viii] company/ consumer contracts; guidelines of NGOs; and domestic, financial, advertising and internet and computer technology[ix] regulations. In the corporate world, there is evidence of a reluctant and conservative approach to the development of mobile payments. Directors have a duty to spend money wisely for shareholders, which may be seen as counter-acting any investment in mobile payment services due to the high level of perceived risks. Fortunately, challenge funds[x] can be used to launch mobile payments projects.[xi] Partnerships between mobile phone network operators, micro-finance institutions (“MFIs”) and banks enable mobile payment services, by combining the expertise of each institution to create a valuable service.
Company/ consumer contracts create barriers for network providers attempting to set up mobile payments services in countries with weak legal systems. Where there are weak legal systems, enforcing contracts can be difficult and risky. Small loans without collateral or guarantees are also at high risk. This can deter institutions from investing in micro-finance or mobile payments ventures. Network providers have overcome these barriers by attempting to create new and innovative contract terms. These contract terms include group loans whereby individual loans are given to each person in a group with the liability falling on other group members if one member defaults. Peer pressure and social standing encourage members to keep up with repayments. This method has proven successful. Furthermore, some MFIs collect money from service users in public, making transactions more transparent and again encouraging customers to make repayments through fear of embarrassment in front of peers. Mobile payment services and MFIs can run without a banking license.[xii]
In order to enable the provision of mobile payments, a complex structure can be put in place in which a project is run locally but owned, hosted and developed by another company. Therefore, the operation might take the form of a trust in which a local institution works on behalf of a bigger company, such as Orange and Vodafone, that initiates the provision of services. The bigger company, such as Orange, might set up a trust and pool the various assets of the local institutions into a single trust account. The trust does not make money from the interest on consumer savings. However, the trust does make it possible to hold all of the collective funds in a single account to guarantee the transactions.
In countries where mobile payment services do not pose a great threat to the business of established banks, [xiii] many of the financial regulations of the banking industry do not have much of an impact on mobile payments except that customer security and financial reporting requirements are imposed on the mobile payments system as well as ordinary transactions.[xiv] In countries where mobile payments are perceived to pose a risk to banks, contracts can be drafted to enable partnerships between banks and network providers to minimize the risks to the participating banks.[xv] Table II, infra, describes some of the different national regulatory systems that support or limit mobile payment services.
TABLE II
National Regulations Affecting Mobile Payments
| COUNTRY | REGULATION |
| Kenya | In order to enable mobile payments, Kenya issued a new regulation in 2010. This regulation allows banks to partner with retail outlets and enables retail outlets to promote products and handle transactions on behalf of banks. M-PESA used retail outlets as a channel to reach unbanked customers since customers of M-PESA deal with small retail outlets throughout the country. These agents might not have been legally entitled to enter into such transactions if the 2010 financial regulation had not been passed. |
| India | The Central Bank in India blocked moves by several network providers, such as Vodafone, who wished to set up mobile payment services in India. It was adamant that banks must be directly involved. This stems from perceived issues, such as: financial fraud, account misuse and complexity of use of mobile payment systems.[xvi] India is taking a protectionist approach and has not created a regulation to enable nonbank mobile payment services. The Central Bank of India has set a standard whereby only a licensed bank with a presence in India can launch a mobile payments service. |
| South Africa | In South Africa, mobile banking services are not entitled to carry out monetary transactions unless they are partnered with a bank, as set out in the Position Paper on Electronic Money.[xvii] |
| Nigeria | Service providers in Nigeria have no constitutional right to carry out monetary transactions, or facilitate mobile payments, without being partnered with a bank. As in South Africa and India, banks are at the centre of the evolving mobile payments industry. The Bank of Nigeria is responsible for maintaining high standards of banking and financial stability under the country’s Banks and other Financial Institutions Act 1991. Therefore, they are reluctant to allow mobile payment services to operate without a bank in case banking standards are not maintained. |
| Philippines | The Philippines’ Central Bank issued a resolution in 2004 approving mobile payments services. Although circulars have been passed to limit fraud and increase the responsibility of financial institutions running the payments services, ultimately, regulation in the Philippines has enabled mobile payments.(It may also be worth acknowledging that, G-Cash, one of the main mobile payment operators in the Philippines, is regulated by the Philippines Securities and Exchange Commission by virtue of their listing on the Philippines National Stock Exchange.) |
IV. UTILITY FOR MFIs
In the appropriate legal environment, MFIs might enter into an agreement to provide financing for a partner that issues credits through mobile payments. The existing system of mobile payments has diversified into a variety of services such as (i) allowing Party A to payback Party B for services rendered by repaying a loan owed by Party B to a third Party C, (ii) keeping funds safe overnight, (iii) paying salaries, (iv) paying bills, (v) providing low cost international remittances, (vi) checking account balances and (vii) making deposits and withdrawals. A cursory literature search does not suggest any major impediments, aside from perceived risk and management of logistics.[xviii]
Any MFI attempting to set up a mobile payments venture should ensure that its partner honor any relevant national regulations, internal company guidelines, and contractual agreements. It would also be advisable to partner with a local network provider in order to gain expertise in this area[xix] and to ensure the process runs effectively. It is highlighted in the literature on micro-finance that inter-company partnerships and agreements can have either detrimental or beneficial results in the mobile payments sector. Therefore, it would be wise to assess potential advantages and disadvantages of contractual agreements in this sector.
M-PESA in Kenya is an example of a beneficial result. In Kenya, there was no need to partner with local banks that might have had conflicting ideals. M-PESA consisted of a partnership between Vodafone and Safaricom. Both entities were linked and they worked together to achieve similar goals. This contributed to M-PESA’s success.
Due to national regulations, in India, it is necessary to partner with banks. Conflicting ideals between banks and mobile service companies can cause major problems due to different end-goals and processes for achieving the goals. In the case of Vodafone, these requirements had the detrimental effect of preventing Vodafone from setting up a mobile payments service in India, ultimately limiting access to consumers and profits.
V. CONCLUSION
Mobile payments are playing a monumental role in developing countries by providing services to both the unbanked as well as to end consumers of micro-finance. The service is making MFIs more accessible. Therefore, a mobile payments partnership might be useful for any MFI with benefits for end users, saving them time and money when paying off their loans
VI. REFERENCES
[For a full list of references and footnotes, please see the full version of this article at this link. Thank you.]
Civil Rights Lawsuit Served on Port of Seattle
SEATTLE – July 25, 2013. An employee of the Port of Seattle, Cecilia Anitei, has sued the Port for violating her civil rights under federal and state law. The complaint and summons were served this week. Mrs. Anitei says, “I truly hope that my story will convince more women to come forward and seek justice in the face of the male-dominated culture and aversion against minorities at the Port.”
Mrs. Anitei was held back in promotions and opportunities due to her gender, disability, national origin, and her filing of complaints with Human Resources. She says, “I felt humiliated, discouraged, and put down by constant harassment, injustice and statements about the fact that I have young kids.” Mrs. Anitei’s salary ranks at the bottom of a group of 25 colleagues, rising only above a “College Intern” and an “Archive Systems Administrator,” despite strong performance over 11 years. The Port refuses to recognize her BS in Engineering because it was awarded by a university in Romania. She has a Master’s in Engineering but males with fewer qualifications are promoted ahead of her.
She received “outstanding” and “accomplished” evaluations up until she refused to perform an underdock inspection due to her hydrophobia and discomfort with a former supervisor who groped her knees and shoulders and continues to stalk her. In May 2012, he called her home number and spoke the Romanian word for “penis.” The Port has refused to move Mrs. Anitei a safe distance away or to a building at SEA-TAC. “The sexual harassment and unwanted physical contact endured at work caused me to suffer anxiety, intense emotional distress, and humiliation,” says Mrs. Anitei.
A male colleague called her a “hot chick with a funny accent” but was subsequently promoted into management and, now, refuses to provide assignments to her within his division because she complained to Human Resources about his comment. As a native speaker of Russian and Romanian, she was called a “Russian spy” whose husband is a “KGB agent.” The Port took no action in response to Mrs. Anitei’s complaints. She is a mother of two, loving wife, and active member of a local church.
About RJ Gaudet & Associates LLC
Mrs. Anitei is represented by Robert J. Gaudet, Jr. of RJ Gaudet & Associates LLC with offices in Seattle and The Netherlands, telephone (206) 855-6679, email [email protected]. Mr. Gaudet served as co-chair of the American Bar Association SIL International Human Rights Committee and was a member of the Washington State Bar Association Civil Rights Committee.
Judging the Telders Moot Court Competition in the Peace Palace
Judging the Telders Moot Court Competition in the Peace Palace
By Karin Asmus
Prof. Dr. Ingrid Detter de Frankopan served as a judge at the prestigious 36th annual Telders Moot Court Competition held from 25 until 27 April 2013 at the Peace Palace in The Hague. The student team from Leiden University in the Netherlands won the competition. Prof. Dr. Ingrid Detter de Frankopan was asked to serve as a Judge for the Semi-Finals. She is the longest serving Judge for the Semi-Finals and has been voted Best Judge several times.
Prof. Dr. Ingrid Detter de Frankopan with Judges for the Finals (from left to right) ad hoc ICJ Judge John Dugard from South Africa, ICJ Judge Kenneth Keith from New Zealand, and former President of the Supreme Court of the Netherlands Mr. Willibrord Davids.
The first Telders Moot Court Competition took place in 1977, when only four universities took part. Now, over 40 universities compete in national rounds. Only the most successful teams may represent their country in the international rounds held at the Peace Palace in the Hague.
Prof. Dr. Ingrid Detter de Frankopan with the French team.
Each year, student-teams are presented with a case involving a fictitious dispute between two states. This dispute is put before the United Nations’ most important legal organ, the International Court of Justice. It is up to the student-teams to defend the two states to the best of their ability. Each student-team has to represent the states substantively both in writing and through pleadings before so-called moot courts. This year, the participants pleaded the Varsho River Dispute, which once was a real dispute regarding the Varsho River and a freshwater lake which serve as the boundary between two States. Both (actors within) the States had their own ideas of how to use the river and the lake, which raised some environmental concerns and questions about each State’s rights and obligations under international law.
Prof. Dr. Ingrid Detter de Frankopan with the Italian participants.
The aim of the Telders Competition is to prolong the legacy of Professor dr. Benjamin Marius Telders, who became a professor of international law at Leiden University in 1937. Telders was intensely interested in why and how law operated. Professor Telders was respected for his sharp mind and had the honour to represent his country frequently, including before the Permanent Court of International Justice. Even during the Second World War, Telders stood up for his belief in the rule of law and civil society, and as a result was sent to the concentration camp at Bergen Belsen, where he later died in 1945.
Prof. Dr. Detter de Frankopan is Of Counsel at RJ Gaudet & Associates LLC, a firm based in Seattle with a branch in The Hague and an address in London. The firm works on international legal matters.
