Author: BPS_NJA_Muthu

Navigating the Post-Loper Bright Era: A New Frontier for Employment Litigation Strategy

A recent federal court decision concerning an EEOC right to sue letter has profound implications for corporate decision-makers, signaling a critical shift in how federal employment discrimination statutes are interpreted. The case, Prichard v. Long Island University, represents one of the first judicial applications of the U.S. Supreme Court’s landmark 2024 decision in Loper Bright Enters. v. Raimondo—a ruling that eliminated decades of judicial deference to federal agencies.

The Prichard ruling essentially challenges the Equal Employment Opportunity Commission’s (EEOC) long-standing regulation that allows it to issue an “early” Right-to-Sue (RTS) letter, an outcome that employers must now factor into their litigation strategies.

The Prichard Precedent and the EEOC Early Right-to-Sue Regulation
Title VII of the Civil Rights Act (and by extension, the Americans with Disabilities Act) establishes a mandatory framework for pursuing discrimination claims. Generally, an individual must first file a charge with the EEOC. The statute dictates that the agency issues an EEOC right to sue letter only after either: (1) the EEOC dismisses the charge, or (2) 180 days have passed since the charge was filed, and the EEOC has not filed a lawsuit or entered into a conciliation agreement. This 180-day waiting period is a statutory precondition to filing a federal lawsuit.

However, the EEOC promulgated a regulation (29 C.F.R. § 1601.28(a)(2)) that allows it to issue an early RTS letter upon a charging party’s request if the Commission determines it is probable it won’t complete its administrative processing within the 180-day window. This regulation has historically been a lifeline for plaintiffs seeking to expedite their claims to court, but its validity has been contested, creating a split among federal circuit courts.

In Prichard, a New York federal court was confronted with this precise issue. The plaintiff, Cecilia Prichard, was terminated by Long Island University and filed an ADA charge. At her request, the EEOC issued an early RTS letter just 57 days later. The University moved to dismiss the ensuing lawsuit, arguing the early letter was invalid because the statutory 180-day period had not elapsed.

The Impact of Loper Bright Enters. v. Raimondo
The New York court sided with Long Island University, concluding that the EEOC’s early RTS regulation was incompatible with the clear text of the employment discrimination statute. Crucially, the court explicitly noted that the plaintiff’s reliance on prior cases that upheld the regulation were decided under the now-overruled Chevron deference standard.

The Supreme Court’s decision in Loper Bright vs. Raimondo eliminated this deference, asserting that courts, not administrative agencies, are the ultimate arbiters of statutory meaning. By applying Loper Bright, the Prichard court held that the EEOC had exceeded its statutory authority by issuing the EEOC right to sue letter before the mandatory period expired. This is a seminal moment, representing a direct judicial rejection of an EEOC regulation based on a post-Loper Bright textual analysis of the statute.

Learn more about Loper Bright Enters vs Raimondo’s impact on the Cheveron deference here.

Litigation Strategy Implications for Corporate Employers
For corporate decision makers, the Prichard case opens new strategic avenues regarding employment litigation:

1. Controlling the Litigation Timeline: Employers may now be better positioned to challenge an early EEOC right to sue letter, ensuring that the plaintiff is forced to wait the full 180 days before properly filing a lawsuit. This can be a significant tactical advantage, providing the employer with additional time for preparation and potentially extending the plaintiff’s pre-suit timeline.
2. Evaluating the Risk of EEOC Investigation: Historically, some employers have welcomed an early RTS letter because it ends the EEOC’s administrative process. A contested charge that remains with the EEOC for the full 180-day period risks a more thorough and potentially burdensome agency investigation, which may involve requests for information (RFIs) that can feel like “free discovery” for the plaintiff.
3. Case-by-Case Analysis: The decision to challenge the validity of an early RTS letter is not a one-size-fits-all strategy. In matters where the evidence is overwhelmingly in the employer’s favor or the charge is highly sensitive, fighting the early RTS may be prudent to control timing. However, for charges that are factually complex or involve widespread practices, forcing the charge to remain with the EEOC for a prolonged investigation may carry the greater risk of a negative agency finding or an aggressive RFI that the employer would rather avoid.

The Prichard ruling demonstrates that in the wake of Loper Bright vs. Raimondo, the legal landscape for employment regulation is shifting. Corporate counsel must remain vigilant, as this case may be the first of many to challenge long-standing EEOC regulations that previously enjoyed judicial deference. Employers should work closely with experienced counsel to reassess their litigation strategies in this new era of judicial statutory review. Bleakley Platt & Schmidt’s Labor & Employment Law Practice Group can help clients adjust litigation strategies to account for this important change.

Navigating New York State Environmental Regulations: A Strategic Imperative for Corporate Leaders

Corporate decision-makers in New York State face new environmental regulatory challenges. While federal policy has decidedly shifted toward environmental deregulation, New York’s environmental regulators have taken a divergent path, recently enacting some of the nation’s most aggressive regulations. This disparity places corporations in the position of navigating through a legal and operational landscape where federal and state enforcement efforts differ significantly.

The push for federal environmental deregulation, including significant changes to the National Environmental Policy Act (NEPA), has been framed as a way to reduce red tape and streamline operations for various industries. The apparent goal is to lessen the burden of federal oversight and promote economic activity. At the state level, however, New York’s regulators are not bound by federal policy and mandates. The state’s landmark Climate Leadership and Community Protection Act (CLCPA) sets ambitious targets, including an 85% reduction in greenhouse gas emissions from 1990 levels by 2050 and a 100% zero-emission electricity grid by 2040. These goals are at odds with a federal agenda that, in some cases, seeks to promote fossil fuel production.

This regulatory disparity isn’t just a political talking point; it’s a source of tangible business risk.  The divide is playing out in courtrooms, with the U.S. Department of Justice challenging New York State environmental regulations like the new climate laws, which seek to hold fossil fuel companies accountable for climate-related damages.

At the same time, environmental organizations are suing New York State for delaying the full implementation of the CLCPA. This legal pressure on the New York State Department of Environmental Conservation (NYSDEC) signals that state-level enforcement is poised to intensify. Companies that hoped to benefit from federal environmental deregulation may find themselves under the intense scrutiny of NYSDEC

Review proposed NYSDEC regulations here.

One of the most significant challenges is the logistical and financial burden of complying with a patchwork of conflicting standards.

Consider the example of a developer planning a large-scale project in New York. Under federal NEPA deregulation, the project might face a streamlined environmental review process. However, to comply with the CLCPA and other rigorous state laws, the company would still need to conduct a comprehensive environmental impact analysis, potentially delaying the project and increasing costs.

The threat is not just current compliance, but also the risk of future re-regulation. Relying on the federal government’s current approach of environmental deregulation is a gamble, as environmental policies are subject to change with each new administration. A corporation that defers investments in new technology or postpones compliance to take advantage of federal rollbacks could face a significant financial and legal aftershock if a new administration re-imposes or strengthens federal regulations.

Given this volatile landscape, it’s critical for corporate leaders to proactively assess their environmental risks and develop a long-term legal strategy that accounts for both short term and long term anticipated federal and state regulations. Staying ahead of the curve means understanding that New York’s commitment to its climate goals is not a passing trend but a legally enforced mandate. This requires a shift from reactive compliance to proactive risk management, ensuring that a company is prepared for a future where stricter environmental standards, not deregulation, are the prevailing norm. Bleakley Platt & Schmidt’s Environmental Law Practice Group is available to help corporations maintain compliance and navigate these evolving regulations.

A New Era for Municipal Cybersecurity: New York’s Chapter 177 Mandate

New York State has taken a decisive step to strengthen its digital defenses with the enactment of Chapter 177 of the Laws of 2025. This legislation addresses the impact of ransomware attacks that have increasingly targeted local governments. For municipal leaders and IT professionals, this law is a clear signal that cybersecurity is becoming a core responsibility of public service.

New Reporting Rules for Municipalities
Chapter 177 mandates that all New York municipal corporations and public authorities must report cybersecurity incidents and demands for ransom payments to the Division of Homeland Security and Emergency Services (DHSES). The law establishes specific reporting timelines to ensure a swift, coordinated cybersecurity incident response effort.

If a municipality receives a ransom demand, it must provide notice to DHSES within 24 hours, and provide a written explanation detailing why the payment was necessary, the amount, and the method of payment. Municipal requests for technical assistance or advice must be acknowledged by DHSES within 48 hours.

The reports are generally exempt from Freedom of Information requirements to ensure that sensitive incident details remain protected. This is a crucial feature that encourages transparency without compromising security.

A Mandate for Proactive Defense
Beyond the reporting requirements, this new municipal cybersecurity law also mandates cybersecurity training for all municipal and state employees. Local government entities are required to adhere to robust cybersecurity protection and data protection standards. These standards cover essential practices like secure data backup, information system recovery, and vulnerability management. By requiring standardized practices and centralized reporting, New York aims to improve the overall defense of its public infrastructure.

Learn more about municipal cyber-attacks here.

Implications for Private Businesses
While this law directly applies to municipalities, its influence also extends to the private sector, particularly for businesses that contract with or provide services to public entities. Because municipalities are now subject to strict reporting obligations, they will likely demand a higher cybersecurity posture from their vendors and contractors.

Private companies that provide IT services, software, or other critical infrastructure to New York municipalities should be aware that their own cybersecurity practices may come under scrutiny as part of a municipality’s due diligence. This could lead to new contractual clauses and heightened expectations for security standards. The focus on reporting ransom payments may also impact cyber insurance policies, as insurers may begin to require proof of compliance with these new mandates as a condition for coverage or claims processing.

For private businesses, this is an opportunity to get ahead of the curve. Implementing a strong cybersecurity incident response plan, conducting regular employee training, and ensuring compliance with industry best practices are becoming de facto necessities for engaging in public contracts.

Bleakley Platt & Schmidt, LLP has deep experience in information technology & cybersecurity law, helping both public and private sector clients navigate complex legal and regulatory landscapes. We can assist municipalities in understanding and complying with this new law and guide private businesses in preparing for its ripple effects.

Property Owners and Developers Need to Understand New York’s Revised Wetlands Regulations

The New York State Department of Environmental Conservation (DEC) recently enacted significant changes to its freshwater wetlands regulations. These updates demand immediate attention from owners, developers and site contractors. The changes became effective January 1, 2025.

Prior to these revisions, those seeking to ascertain whether development plans might be impacted by the presence of DEC jurisdictional wetlands could start with existing DEC wetland maps, which provided a degree of predictability for property assessments. The new Article 24 regulations fundamentally alter this approach, shifting to a more granular, parcel-specific review process.

The days of planning based on analysis of the wetland mapper database are over. Every property now requires an individualized jurisdictional determination from DEC, a mandatory initial step in the process that can impact project timelines and associated costs. DEC is required to respond to requests for a jurisdictional determination within 90 days, after which it has limited time to assert jurisdiction, which can result in a waiver of the State’s right to assert jurisdiction at all. Developers now must factor this new procedural hurdle into their project schedules from the outset.

If a letter of positive jurisdiction is issued by DEC, which is now based on an initial desktop-only review by DEC, owners and developers must then schedule an actual wetland delineation site visit with DEC, a next step that creates further delay.

One of the most impactful changes is the expanded reach of the new regulations. DEC estimates that an additional one million acres of freshwater wetlands across the state will now fall under its jurisdiction. This substantial increase includes newly defined “Wetlands of Unusual Importance,” which are now regulated regardless of their size if they meet any of eleven specific criteria. For instance, wetlands in urban areas, those harboring rare plant or animal habitats, or those designated within FEMA floodways, are now subject to state oversight irrespective of their acreage. Learn more about how NYSDEC defines these wetlands here.

Furthermore, the previously established standard 100-foot buffer adjacent to regulated wetlands can now be enlarged. For nutrient-poor wetlands and productive vernal pools, this regulated buffer may be significantly larger, potentially further limiting developable land. Looking ahead to January 1, 2028, the default size threshold for a state-regulated wetland will decrease from 12.4 acres to 7.4 acres, further expanding the scope of new york state regulated freshwater wetlands. This phased implementation underscores the need for continuous vigilance and proactive planning.

These changes present both challenges and opportunities. The immediate implication is an increase in the complexity of environmental due diligence. Longer approval timelines and higher costs for the permitting process and environmental consulting services are now a reality. The new Article 24 also introduces a layer of complexity for municipalities and government agencies striving to ensure compliance with the State Environmental Quality Review Act (SEQRA), which may lead to bottlenecks in local land use approvals. Understanding these moving parts and new implications is paramount for efficient project execution.

The expanded scope of the new wetland regulations means that what was once considered non-jurisdictional land may now be subject to rigorous environmental review and permitting. This necessitates a proactive approach to property assessment and development planning. Engaging an experienced environmental attorney early in the process is no longer just an option; it’s a strategic imperative. We can help you navigate these complexities, from requesting accurate jurisdictional determinations to developing strategies that minimize delays and optimize your project’s financial viability.

Ultimately, these regulatory shifts reshape the calculus for commercial development in New York. Property owners and developers must adapt their strategies to account for increased regulatory scrutiny, extended timelines, and a broadened definition of protected areas. Proactive engagement with legal and environmental experts is the key to successfully safeguarding your commercial interests. Bleakley Platt & Schmidt’s Environmental Law Practice Group can guide you through this evolving regulatory landscape. Contact Jonathan A. Murphy at (914) 287-6165 or jamurphy@bpslaw.com.

Recent Tariffs Impact Construction Project Costs

Recent changes in trade policy, particularly the imposition of tariffs on construction materials, have introduced significant new challenges for construction firms. As management, you’re likely grappling with the immediate question: how will tariffs affect the costs of construction projects already in progress, especially when it comes to projects with pre-existing, fixed-price contracts? At Bleakley Platt & Schmidt, LLP, we’ve been working closely with our construction clients to address these very concerns, where the central issue is managing price escalation after contracts have been signed.

Many construction firms today find themselves with hundreds of active projects where contracts with owners are already in place. In such situations, the written contract typically governs the relationship. Therefore, a thorough examination of each contract’s specific terms is crucial to determine if there is a contractual basis to seek additional compensation due to tariff-based price increases occurring post-contract execution.

The most direct avenue for relief often lies within a price escalation clause. These clauses are designed to anticipate and address unforeseen material cost increases. Generally, they fall into three common categories:

First, there are “any-increase” escalation clauses. These provisions are the most straightforward, entitling a downstream contractor or supplier to reimbursement for virtually any price increases that occur after the contract’s execution.

Threshold escalation clauses are the second type. These clauses only allow additional compensation if significant price increases occur after signing the contract and exceed a predetermined percentage or dollar amount. This acts as a protective measure against minor fluctuations while still providing recourse for substantial cost jumps.

Finally, delay escalation clauses come into play when project timelines extend beyond expectations. These clauses maintain a fixed price for a limited period but allow for additional compensation to the downstream contractor if the project is delayed beyond a specified number of days or a particular date, thereby accounting for the increased costs incurred during the extended period.

Given the current tariff environment, it is paramount for contractors to diligently review each active contract for the presence of a price escalation clause. Moreover, moving forward, the inclusion of such a clause in any new project contracts should be a high priority for proactive risk management.

Learn more about the role of price escalation clauses in construction contracts here.

What if your existing contracts lack a price escalation clause? While less direct, other contractual provisions might still offer a path to relief from price escalation in construction. Some contracts, for instance, include language that permits extra compensation for changes in law that occur after the parties enter into an agreement. Tariffs, being governmental impositions, could potentially fall under such a provision, depending on the precise wording of your contract.

Another area to explore is whether you can assert force majeure. These clauses typically address delays or non-performance caused by extraordinary events beyond the control of the parties, such as natural disasters, wars, or strikes. The question of whether tariffs qualify as a force majeure event is still evolving in the courts. New York law, notably, tends to interpret force majeure clauses narrowly. This means that performance is generally excused only when the contract specifically lists the event that prevents performance. Therefore, unless your force majeure clause explicitly mentions the imposition of unanticipated tariffs, it might not be deemed a qualifying event. However, a broadly worded force majeure clause, or one with an inclusive “catch-all” provision, could still potentially encompass tariff-related impacts.

Beyond specific contractual language, legal or equitable arguments asserting commercial impracticability, impossibility, or frustration of purpose might offer avenues of relief from tariff-based cost increases. In situations where a contract lacks any cost escalation or force majeure clause, or other provisions addressing unforeseen circumstances, performance might still potentially be excused under the legal doctrine of impossibility.

Ultimately, the most prudent approach for any construction firm is to address material price escalation proactively within the contract itself, rather than relying on potentially uncertain legal and factual arguments after the fact. We at Bleakley Platt & Schmidt, LLP strongly advocate for negotiating appropriate price escalation clauses in all new construction contracts. This foresight can save your firm significant financial strain and legal headaches down the line.

Bleakley Platt & Schmidt, LLP’s Contruction Law Practice Group provides tailored guidance on navigating the impact of tariffs on construction materials and can help fortify your contracts against future price escalation. Strategic planning today can protect your projects and your bottom line tomorrow. Contact Jonathan A. Murphy at (914) 287-6165 or jamurphy@bpslaw.com.

Bleakley Platt & Schmidt at the Columbian Lawyers Association of Westchester’s Annual Gala

Featured (left to right): James Ausili, Lino Sciarretta, Christine Kager, Katherine Krahulik, and Susan Galvão, as well as Stephen Dorsainvil of our accounting department.

Bleakley Platt & Schmidt is proud to have sponsored and attended the Columbian Lawyers Association of Westchester’s Annual Gala at Glen Island last Friday. We congratulate Angie D’Agostino, Esq., Dean for Student & Campus Affairs at Elisabeth Haub School of Law at Pace University, on receiving The Honorable Richard J. Daronco Distinguished Service Award for her contributions to the study of law.

Six BPS team members were in attendance.

Proposed 30-Month Medicaid Lookback Period in New York State– What It Could Mean for Community-Based Long-Term Care Recipients

New York State has proposed significant changes to Medicaid that could have major implications for individuals applying to receive home care or assisted living services. Originally expected to be implemented in March 2025, New York’s 30-month Community Medicaid lookback period for non-institutionalized has not yet received final federal approval, but applicants should nevertheless prepare for its potential impact.

Background
Previously, there was no lookback period required for individuals seeking Community Medicaid services. This allowed many seniors and disabled individuals to preserve their assets while receiving the care they need. However, in 2020, the New York State legislature enacted a 30-month lookback period for community long-term coverage in New York for the first time and included a transfer penalty. New York submitted a request to the Centers for Medicare & Medicaid Services (“CMS”) to approve this change in state law. Additionally, implementation was delayed due to prohibitions against new Medicaid restrictions imposed by the federal government during the covid-19 pandemic. Moreover, NY Department of Health officials indicated that they needed more time to implement new procedures and train staff on the new law. It now appears likely that the transfer penalty and thirty-month look-back period may be implemented before the end of 2025. Review the proposal here.

Significance & Consequences
If the proposed 30-month community Medicaid lookback period in New York is enforced, applicants will face various challenges that will require guidance. These challenges may include whether they can shelter excess income through pooled income trusts and how the transfer penalty start date will be calculated. Similar to Medicaid’s nursing home lookback period, it is likely that Community Medicaid applicants would have to provide a comprehensive accounting of all transfers made within the 30-month period immediately preceding their application date in order to determine their eligibility to receive said services. Any uncompensated transfers, such as gifts to family members (other than a spouse), property transfers, or assets placed in trust, could result in a penalty period during which Medicaid coverage for Community Medicaid services would be denied. A New York Medicaid home care lookback period could result in delayed access to critical services such as adult day health care, assisted living programs, certified home health agency services, personal care services, and private duty nursing.

What You Can Do
The implementation of a 30-month lookback period for home care benefits in New York represents a significant shift in Medicaid policy, and individuals planning to apply for Community Medicaid should take proactive steps to protect their financial future.

The Elder Law and Special Needs Practice Group at Bleakley Platt & Schmidt, LLP is dedicated to helping their clients navigate these complex changes in the law and assisting those looking to receive Medicaid Services. Contact Sara L. Keating at (914) 287-6110 or skeating@bpslaw.com.

Neville et al. v. Snap, Inc.: A Potential Game-Changer for the Social Media Free Speech Debate

The digital realm is constantly evolving, and with it, the legal framework that governs online interactions. Now a California lawsuit, Neville et al. v. Snap, Inc., is challenging the long-held understanding of the protections provided to owners of social media platforms by Section 230 of the Communications Decency Act of 1996. Beyond fueling debates surrounding social media and free speech, a final result in favor of the plaintiffs in that action could potentially reshape the liability landscape for social media companies and the broader tech industry.

Understanding Section 230
Section 230 (47 U.S.C. § 230) is a cornerstone of internet law. It generally protects “providers of an interactive computer service” from being treated as the “publisher or speaker” of information shared by third parties on their platforms. This protection has historically served as a broad shield for tech companies against lawsuits based on user-generated content. The intent behind Section 230 was to foster innovation and free speech online, preventing platforms from over-censoring content for fear of liability. It’s important to note Section 230 does not protect conduct that violates any federal criminal statute, electronic communications privacy law, or intellectual property rights.

The Neville et al. v. Snap, Inc. Challenge: Beyond Content Moderation.
Neville et al. v. Snap, Inc. involves claims brought by parents whose children allegedly purchased fentanyl-laced drugs through connections made with sellers using the social media app Snapchat, leading to serious injuries and deaths. The plaintiffs argue that Snapchat’s features and design facilitated these illegal transactions, creating an “open-air drug market” within the app.

Unlike previous lawsuits that have focused on content moderation, the Neville case centers on the platform’s features and design as factors causally related to the injuries alleged. The plaintiffs argue that Snapchat’s features, such as automatic message deletion, location mapping, and “quick-add,” create an environment conducive to illegal drug sales. They also contend that Snap was aware of the use of its app to facilitate illicit drug transactions, but failed to implement adequate safeguards. Moving to dismiss the plaintiff’s complaint, Snap invoked Section 230 immunity, arguing that the alleged harm stemmed from third-party content and therefore fell under the broad protections of Section 230.

The Court’s Decision: A Shift in Perspective?
In a 34-page opinion sustaining the legal sufficiency of several of the plaintiffs’ claims as pleaded, including those alleging negligence, fraud, and misrepresentation, the California Superior Court for the County of Los Angeles disagreed with Snap’s interpretation. While acknowledging Snapchat as an “interactive computer service” and recognizing that Section 230 protects social media companies against liability as a “publisher or speaker,” the court determined that the plaintiffs’ claims were not based on Snap simply acting as a “publisher or speaker.” Rather, the court accepted the plaintiffs’ argument that their claims focus on the alleged dangers of Snap’s product design and business decisions, independent of the content posted by sellers of illicit drugs. The court emphasized that these claims were beyond Snap’s “incidental editorial functions,” which are typically protected by Section 230.

Read the court’s opinion in full here.

One to Watch
If the Neville plaintiffs ultimately prevail on their claims – a result that will depend on numerous legal and evidentiary issues yet to be addressed – such an outcome could have significant implications for the tech industry in general and social media platforms in particular. But while the final outcome of the Neville case remains a distant unknown at this time, even at this early stage of the litigation it represents a notable moment in the ongoing debate about social media free speech, the protections of Section 230, and the responsibilities of social media companies, highlighting the complex intersection of technology, law, and public safety. Bleakley Platt & Schmidt’s Litigation Practice Group will continue to closely monitor this case as it proceeds.

Arbitration Clauses in Contracts: Are They Fair for Workers?

Arbitration clauses are increasingly common in employment contracts, requiring disputes to be resolved through private arbitration instead of the traditional court system. While proponents argue that arbitration is efficient and cost-effective, critics contend that it can be a powerful tool for large corporations to avoid accountability by limiting workers’ rights and access to justice. Charles Adler, et al. v. Gruma Corporation, et al., No. 23-3177 (3d Cir.) provides a real-world example of arbitration clause concerns, highlighting their potential to undermine workers’ rights and shift the balance of power in favor of large corporations.

Case Background
Charles Adler and his son, Grant, ran a distribution route in New Jersey for Gruma Corporation, the world’s largest tortilla manufacturer and owner of popular brands like Mission Foods. While Gruma exerted significant control over their work, the Adlers were denied the protections typically afforded to employees or independent franchisees.

After the Adlers consulted with an attorney regarding their rights, Gruma terminated their distributorship. The Adlers believe this termination was retaliatory. Bleakley Platt & Schmidt partner Stephen J. Brown filed suit against Gruma, alleging violations of several federal and state laws, including the Fair Labor Standards Act and the New Jersey Franchise Practices Act.

Read about Bleakley Platt & Schmidt’s involvement in this case here.

Compelled Arbitration and the Appeal
Arbitration clauses are often included in contracts to keep disputes out of court. Rather, these clauses stipulate a private arbitration process. Instead of addressing the merits of the case, Gruma successfully moved to compel arbitration.

The Adlers appealed this decision to the U.S. Court of Appeals for the Third Circuit. Bleakley Platt and the Public Justice Foundation represent the Adlers on the appeal. They argue that the arbitration agreement should not be enforced because it denies them access to the court system and the legal protections they deserve. This appeal highlights a key concern about arbitration clauses: their potential to undermine the rights of individuals by limiting their access to the courts.

Audio of the November 6 oral argument can be found here.

The Broader Implications
This case serves as a stark reminder of the potential pitfalls of widespread arbitration clauses. It highlights the need for a careful examination of these agreements and their impact on workers’ rights. The outcome of this appeal will have significant implications for workers’ rights and the balance of power between individuals and corporations. If the court rules in favor of the Adlers, it could limit the ability of corporations to use arbitration clauses to avoid legal responsibility for wrongdoing. This would be a significant victory for those advocating for stronger worker protections and greater access to justice.

Because the outcome of this case could have a profound impact on the future of workplace justice in the United States, the Third Circuit’s decision will be closely watched by those concerned about worker protections and corporate accountability.

Father and Son Distributors Appeal Order Compelling Arbitration in Case Challenging Retaliatory Termination by Largest Tortilla Manufacturer

White Plains, NY – Bleakley Platt & Schmidt, LLP (White Plains, NY) and Public Justice (Washington, D.C.) represent Charles L. Adler, Grant Adler, and C.M. Adler, LLC, in an appeal before the U.S. Court of Appeals for the Third Circuit. The appeal follows the dismissal of the Adlers’ federal and state law claims against Gruma Corporation by the U.S. District Court for the District of New Jersey, which compelled arbitration in a dispute over Gruma’s termination of the Adlers’ distributorship.

For years, Charles Adler and his son Grant ran a New Jersey distribution route for Gruma Corporation through Charles’ solely owned company. Gruma, which owns popular brands like Mission Foods, is the world’s largest tortilla manufacturer. Though Gruma exercised significant control over the Adlers’ work, it denied them the protections typically given to employees or independent franchisees. After the Adlers (and other distributors) consulted with legal counsel regarding their rights, Gruma terminated their route. Represented by Stephen J. Brown, Esq., of Bleakley Platt & Schmidt, LLP, the Adlers filed suit, alleging that Gruma’s termination was retaliatory. They claim that Gruma violated several federal and state laws, including the Fair Labor Standards Act, the New Jersey Wage Payment Law, New Jersey Wage and Hour Law, and the New Jersey Franchise Practices Act. Instead of answering the claims on the merits, Gruma moved to compel the Adlers into arbitration. The District Court granted the motion to compel arbitration and dismissed the Adlers’ case.

The Adlers have appealed to the U.S. Court of Appeals for the Third Circuit. They are represented on appeal by Stephen J. Brown of Bleakley Platt & Schmidt, LLP, and Hannah Kieschnick of Public Justice. Kieschnick presented argument to the Third Circuit on November 6, 2024. The outcome of this appeal could set important precedent regarding arbitration agreements and their impact on access to justice and statutory protections for small business owners and workers like the Adlers.

“These federal and state laws were designed to level the playing field between the little guy (the Adlers) and the giant multi-national corporation (Gruma),” said Brown. “This case and the important issues raised on appeal challenges an arbitration ruling that threatens to erode those protections which provide access to the court system under both state and federal law.”

“This case raises critical issues for workers nationwide, not just about fair treatment under the law but also about their ability to access courts to vindicate their rights,” added Kieschnick. “Public Justice is committed to ensuring that hardworking folks like the Adlers are not forced into arbitration processes that undermine important statutory and constitutional protections.”

The case is Charles Adler, et al. v. Gruma Corporation, et al., No. 23-3177 (3d Cir.). Audio of the November 6 oral argument can be found here.

About Bleakley Platt & Schmidt, LLP
Bleakley Platt & Schmidt, LLP, is a full-service law firm based in White Plains, New York, with a long history of successfully representing clients in complex litigation. Learn more about the firm at www.bpslaw.com. Stephen J. Brown is a partner at the firm with extensive experience representing route distributors in critical actions protecting distributors’ statutory and constitutional rights from management overreach.  Mr. Brown’s practice includes commercial, trust and estate and guardianship litigation in state and federal courts. His bio can be found here.

About Public Justice
Public Justice is a national nonprofit organization dedicated to high-impact litigation aimed at promoting access to justice, combating corporate and governmental abuses, and advancing fairness in the legal system. Learn more at www.publicjustice.net. Hannah Kieschnick is as a staff attorney in the Access to Justice Project. She litigates high-impact cases with the goal of making the civil court system a fair and effective tool for those with less power to win just outcomes and hold those with more power accountable. Hannah’s full bio can be found here.

Planning Ahead for Long-Term Care with Medicaid Asset Protection Trusts

Planning for long-term care can feel overwhelming. Between competing financial priorities and the rising costs of care, many families wait until a crisis hits to address this crucial issue. By then, valuable strategies may be less effective. One such option to consider early is establishing a Medicaid Asset Protection Trust (MAPT), which can help one qualify for Medicaid payment for long-term care while protecting personal assets.

What is a Medicaid Asset Protection Trust (MAPT)?
A MAPT is a legal tool designed to shield particular assets from being counted when determining Medicaid eligibility. In New York, the current Medicaid asset limit is $31,175 (as of 2024). If the combined value of your countable assets exceeds this limit, you may be ineligible for Medicaid benefits. By transferring assets into an irrevocable MAPT, you can potentially qualify for coverage while protecting your assets and preserving them for your loved ones.

Learn more about Medicaid eligibility here.

How Does a Medicaid Asset Protection Trust Work?
There are three key parties involved in a MAPT:

• Grantors: The person or persons who create the trust and transfer assets into it.
• Trustees: The individuals responsible for managing the trust assets according to the grantor’s wishes outlined in the trust agreement.
• Beneficiaries: The persons or entities who will receive the trust assets upon the grantor’s passing or when specific conditions are met.

It is important to note that although the grantors can receive income from assets placed into the MAPT, the grantors should never receive principal from the trust assets during their lifetimes, if they want to qualify for Medicaid. This would allow the Medicaid program to count the trust assets toward the Medicaid asset limit.

What Assets Can Be Placed in a MAPT?
A variety of assets can be placed in a MAPT, including:

• Checking and savings accounts
• Stocks and bonds
• Mutual funds
• Certificates of deposit
• Real estate (including your primary residence)

Important Considerations:

• Retirement accounts like 401(k)s or IRAs are generally not suitable for MAPTs in New York. These accounts are typically excluded from Medicaid’s resource test when in “payout status.”

Creating a Medicaid Asset Protection Trust
Establishing an MAPT is a complex legal process. Here are some key factors to consider when planning how to protect assets from Medicaid:

• Timing: For the trust to be effective, transfers to the MAPT must be made outside the Medicaid look-back period, which is generally five years in New York for individuals who apply for Medicaid payments for skilled nursing facility care. Currently there is no transfer penalty for individuals who apply for Medicaid payments for home care. However, a recent change in New York law will make transfers subject to a thirty month transfer penalty for home care eligibility.
• Irrevocable Trust: MAPTs must be irrevocable, meaning the assets cannot be retrieved by the grantor once transferred.
• Beneficiaries: You can designate your children, parents, or other loved ones as beneficiaries. It’s important to choose a trusted individual as the trustee.
• Legal Guidance: An experienced elder law attorney can ensure your MAPT is properly drafted and implemented to comply with Medicaid regulations and maximize its effectiveness.

A Valuable Tool, Not a One-Size-Fits-All Solution
While MAPTs can be a powerful tool for protecting assets and enabling future qualification for Medicaid, they are not suitable for everyone. Consulting with an elder law attorney is crucial to determine if a MAPT aligns with your specific circumstances and long-term care goals.

Begin Planning with Bleakley Platt & Schmidt, LLP
The attorneys of our Elder Law & Special Needs Practice Group have extensive experience guiding New York families through the complexities of Medicaid planning and applications. We can help you determine if a Medicaid Asset Protection Trust is the right option for you and ensure it is structured to meet your needs. Contact us today to schedule a consultation.

When Should I Hire an Elder Law Attorney? Navigating Dementia Care While Safeguarding Your Loved One’s Assets

Families face unique challenges when a loved one is diagnosed with dementia. Consulting with an Elder Law attorney is a crucial aspect of care, as navigating elder care legal matters can feel overwhelming. Our dedicated Elder Law & Special Needs Practice Group provides comprehensive guidance and support to ensure your loved one receives the best possible care while protecting their assets and wishes.

What is Elder Law and What Does An Elder Law Attorney Do?
Elder Law encompasses a broad range of legal issues affecting seniors, including estate planning, Medicaid planning, guardianship, and planning for long-term care. Our Elder Law attorneys have vast experience in these areas and possess the expertise to navigate complex legal issues, complicated government benefit programs and can advocate for your loved one’s well-being. They can help you with:

• Estate planning: Creating wills, trusts, health care proxies, living wills and powers of attorney that reflect your loved one’s wishes, simplify the probate process and protect assets against the high cost of long term care.
• Medicaid planning and applications. Representation in applications for Medicaid to cover home care or nursing home care and preparation of trusts and other estate planning documents which protect assets from long-term care costs.
• Guardianship: If your loved one can no longer make decisions independently, our attorneys can advise you whether guardianship is necessary to ensure their safety, appropriate care and financial management.
• Long-term care planning: Our experienced attorneys can assist you to navigate the complex network of care options, including nursing homes, independent and assisted living facilities and in-home care, while considering financial implications of these choices.

The Importance of Early Planning with Dementia
A dementia diagnosis necessitates early legal planning for several reasons:

• Preserves Your Loved One’s Voice: Early planning allows you or your loved one, while still competent, to participate in decisions about their future care and finances. This ensures wishes are known and respected.
• Reduces Family Burden: Having a plan in place lessens the stress and confusion for families when making difficult decisions. It fosters clear communication and avoids potential conflict.
• Ensures Timely Access to Benefits: Understanding Medicaid eligibility rules and potential asset protection strategies can help secure the necessary benefits for your loved one’s long-term care needs.

What Should Your Elder Care Legal Plan Include?
A comprehensive legal plan for someone with dementia typically includes the following documents:

• Durable Power of Attorney: This grants legal authority to a trusted individual (agent) to handle finances for the individual with dementia.
• Healthcare Proxy: This empowers a trusted individual to make medical decisions for you when you are no longer able to do so. This may include consenting to treatments or choosing a course of care.
• Living Will: This document expresses your wishes regarding medical treatment at the end of life, such as the use of life support and artificial nutrition such as feeding tubes.

Understanding “Legal Capacity” in Dementia Cases
Legal capacity refers to the ability to understand the consequences of one’s actions and make rational decisions. In the context of dementia, the level of capacity can fluctuate over time. An attorney can assess your loved one’s current capacity to determine if they can participate in the legal planning process. If capacity is limited, alternative solutions may be explored, such as appointing a guardian.

Meeting with an Elder Law Attorney
Consulting with an elder law attorney is crucial for navigating legal matters effectively. Here’s what you can expect during a meeting:

• Discussion of medical diagnosis and anticipated care needs.
• Exploration of your goals and concerns.
• Review of your financial situation and assets.
• Explanation of legal options and recommendations for your specific situation.
• Guidance on completing necessary legal documents.

What to Bring to Your Meeting
To ensure a productive meeting, gather the following information:

• Medical records: A recent diagnosis report or summary of relevant medical history, if consulting about guardianship or long- term care or special needs planning.
• Financial statements: Bank statements, investment records, and a list of all assets and debts.
• Existing legal documents: Copies of existing wills, trusts, powers of attorney, and other estate planning documents.
• Family information: Names and contact details of family members and potential agents for powers of attorney and health care proxies.

Taking Action After Your Meeting
Following your meeting, the attorney will guide you through the next steps, which may include:

• Drafting and finalizing legal documents.
• Filing applications for benefits with appropriate government agencies,
• Filing proceedings in courts,
• Helping families understand ongoing responsibilities as caregivers.

Partnering with Bleakley Platt & Schmidt for Elder Care Legal Support
At Bleakley Platt & Schmidt, we understand the emotional toll of caring for a loved one with dementia. Our Elder Law & Special Needs Practice Group provides counsel and compassion throughout the process. Contact Sara L. Keating  at (914) 287-6110 or skeating@bpslaw.com to schedule a consultation and learn how we can help your family.

Four Bleakley Platt & Schmidt Attorneys Named Among “Westchester’s Best Lawyers in 2024.”

Bleakley Platt & Schmidt, LLP is proud to announce that four of our attorneys have been named to Westchester Magazine’s list of “Westchester’s Best Lawyers in 2024.” Each year, the publication assembles a Who’s Who of the County’s top legal talent – and each year, BPS attorneys are among them.

This year’s BPS honorees are:

Frances M. Pantaleo – Elder Law
Joseph DeGiuseppe Jr. – Labor Law (Management)
Nancy J. Rudolph – Trusts and Estates, and Litigation – Trusts and Estates
Zaina Khoury – Ones to Watch, Health Care Law

Congratulations Fran, Joe, Nancy, and Zaina! You continue to make the Firm proud!