Fried Frank recently secured a precedent-setting victory for pro bono client, Laverne Pierre, before the First Department Appellate Division.
In July 2007, Ms. Pierre was nearly murdered by her then-husband, Derick M. Pierre, after he stabbed her repeatedly in their shared home in front of their two young children. After undergoing numerous surgeries to treat her life-threatening injuries, Ms. Pierre sought legal assistance through Her Justice (then “inMotion”) to commence divorce proceedings and was referred to Fried Frank. After litigating the case for nearly three years and settling issues of custody and visitation, the Firm represented Ms. Pierre in a two-day trial before Judge Nelida Malave-Gonzalez over distribution of the parties’ marital property and child support. At trial, Ms. Pierre testified to the heinous abuse she suffered at the hands of Mr. Pierre and her resulting injuries. The Firm argued that, in light of Mr. Pierre’s actions, the trial court should deviate from New York’s presumptive 50/50 split of marital property and instead distribute 95% of the marital home to Ms. Pierre in accordance with Havell v. Islam, 301 A.D.2d 339 (1st Dep’t 2002), which held that courts may exercise their discretion to take such “egregious” conduct into account when dividing marital property.
After an inexplicable delay of over three and a half years, the trial court issued its decision, which, among other errors, ignored Ms. Pierre’s testimony and the equities and distributed the marital home equally between the parties. Fried Frank immediately filed an appeal with the First Department Appellate Division arguing that the trial court had abused its discretion by failing to take Mr. Pierre’s attempted murder of our client into account in distributing the marital home. On November 22, 2016, litigation associate Amanda Giglio argued the case before a five judge panel.
On December 22, 2016, the First Department issued a landmark decision modifying the trial court’s decision to award Ms. Pierre a ninety five percent (95%) share in the marital home based on Mr. Pierre’s attempt to murder his then-wife and granting an additional $32,000 in past due child support unaccounted for by the trial court’s decision. Trial courts are typically granted significant discretion in determining equitable distribution, and while Havell had upheld the trial court’s exercise of discretion to award a great share of marital property to the victim wife, no prior appellate decision has overturned a trial court’s exercise of discretion on these grounds.
The Fried Frank team included real estate and litigation partner Janice Mac Avoy and litigation associate Amanda Giglio, and litigation associates Stephanie Baez and Brenna Terry.
Fried Frank Obtains Sole Child Custody Victory for Pro Bono Client
On Friday, October 7, 2016, the Domestic Relations Branch of the Superior Court of the District of Columbia awarded Fried Frank pro bono client, Ms. B, sole legal and physical custody of her three year old son. Fried Frank was assigned the case through the DC Volunteer Lawyers Project (DCVLP) after Ms. B’s original counsel was unable to continue with the matter. Despite being assigned to the case about a month before the trial, Fried Frank’s team was able to successfully obtain custody for Ms. B, which also included specific terms related to visitation by the child's father.
The custody case originally stemmed from an incident of domestic violence during which Ms. B’s then boyfriend, and father of her child, physically abused her in December of 2015. Ms. B obtained a temporary, and later, a permanent restraining order against her ex-boyfriend and then applied for assistance with the custody battle through the DCVLP. Ms. B and her ex-boyfriend each initially sought full legal and physical custody of the child in common. At trial, Fried Frank’s team had to completely change its strategy at least twice to accommodate both judge’s expressed desire to award joint custody despite the incident of domestic violence and the ex-boyfriend’s radical shift in what he was asking the court to award. Fried Frank’s team ended up presenting three witnesses, including Ms. B, and many pieces of documentary evidence. In the end, this was enough to convince the judge that Ms. B should be awarded sole legal and physical custody of the child.
The DC Volunteer Lawyers Project was founded in 2008 by Jenny Brody, Karen Barker Marcou and Marla Spindel to help address the unmet family law needs of low-income people in Washington, DC, by recruiting, training and supporting volunteer attorneys to handle family law cases. Click here to learn more about learn more about DCVLP.
The Fried Frank team that worked on the matter includes litigation partner Douglas W. Baruch, Kristin M. Whidby and summer associate Sean Conlen.
National Abortion Federation Files Amicus Brief to US Supreme Court
Fried Frank acted as counsel to the National Abortion Federation (“NAF”) and several of its members in Texas and neighboring states in its amici curiae brief to the United States Supreme Court, filed January 4, 2016. The brief was filed in support of Petitioners Whole Woman’s Health et al. and asks the Court to reverse the decision of the Fifth Circuit in Whole Woman’s Health v. Lakey and hold a 2013 Texas law that created a number of new abortion regulations, known as H.B.2, unconstitutional. In Lakey, the Fifth Circuit upheld H.B.2, which, as relevant to the case at hand: (i) required that all Texas abortion facilities comply with “ambulatory surgical center” requirements, and (ii) required that physicians working at those facilities hold admitting privileges at a hospital located within 30 miles of the clinic. As NAF briefed the Court, H.B.2’s effects have been disastrous for women in Texas. More than half of Texas’ abortion facilities have closed, and, but for an emergency stay from the Supreme Court following the Fifth Circuit’s decision, that number would number would have been reduced to single digits. Because of this, many women in Texas must now travel hundreds of miles to receive abortion care, and once they arrive at a city with an open facility they must face longer waiting periods. Due to other Texas abortion laws, many of these women must make multiple visits to the facility to receive care, which for many women means multiple lengthy trips and time away from their work and families. The case has received significant attention in the media and is being closely watched by both sides of the issue.
Fried Frank previously authored an amicus brief asking the Supreme Court to grant certiorari and review the Fifth Circuit’s decision in Lakey. On November 13, 2015, the Supreme Court granted certiorari. The petitioners’ brief was December 28, 2015, and amicus briefs (including NAF’s) were due January 4, 2016. Oral arguments have been scheduled for Wednesday, March 2, 2016. A decision is expected by spring or early summer 2016.
The Fried Frank team was led by Janice Mac Avoy and litigation partner Stephen Juris, and included litigation special counsel Jennifer Colyer and litigation associates Jesse Loffler and Andrew Cashmore.
Founders Pledge, Inc. Recognized as a 501(c)(3) Tax Exempt Organization
Fried Frank advised Founders Pledge, Inc. through its formation and successful IRS recognition as a 501(c)(3) tax exempt organization. Founders Pledge is a charity that aims to better connect the business and non-profit sectors through its innovative “Founders Pledge,” a binding commitment from entrepreneurs and investors to pledge to charity a fixed percentage of the proceeds received from any exit event.
The Fried Frank team included corporate partner Robert Mollen; tax special counsel Joseph Fox; and tax associate Todd Kellert.
Fried Frank Scores Pro Bono Victory for Abuse Victim
The Firm scored a major victory for client Alice M. Alice sued her husband for divorce claiming an irretrievable breakdown of the marriage after suffering years of extreme physical abuse including vicious beatings and rapes. Ultimately, Alice’s husband Terrance T. was convicted of first degree rape for raping Alice, and was sentenced to 40 years in prison. In the divorce action, Terrance countersued for divorce for cause, claiming that Alice had abused him by falsely accusing him of rape, and he counterclaimed for equitable distribution of the marital assets—a modest retirement fund Alice earned by putting herself through college and gaining employment while Terrance was incarcerated. In a 46 page decision, Justice Sunshine of Kings County ruled that, due to egregious fault in repeatedly and viciously assaulting his wife, Terence is entitled to no recovery and is not entitled to a divorce for cause. Thus, Alice is entitled to 100% of the marital assets including her pension fund (she is a city worker). This was an unusual ruling because typically, fault is not considered in dividing the marital property.
Clemency Petition Granted for Fried Frank Pro Bono Client
The White House announced today that President Obama granted clemency to Mr. M, a Fried Frank pro bono client. On July 29, 2015, Fried Frank filed a petition for clemency on Mr. M’s behalf with the U.S. Pardon Attorney. Mr. M had already served 22 years of a life sentence following a 1993 conviction for non-violent drug offenses. The petition argued, among other things, that if Mr. M. had been sentenced today for the same offenses, he would have received a lower sentence based on the Supreme Court’s ruling in United States v. Booker, which clarified that the U.S. Sentencing Guidelines – and the life sentence that the Guidelines specified for Mr. M’s offenses – are merely advisory, not mandatory. The petition included a letter from Mr. M’s sentencing judge, who made clear that “he would not have imposed a life sentence on the defendant had the sentence not been mandated by the Guidelines at the time [and] it is probable that with time credited for good conduct [Mr. M] would have served his sentence by this time.” The petition also included dozens of letters written by Mr. M’s family, friends and neighbors attesting to his good character and specified Mr. M’s rehabilitation and ties to the community. And in his personal statement, Mr. M wrote: “So why do I seek clemency? Because opportunities should be given when society sees a person has progressed, positively and a person has changed and deserves the second change. I believe in letting the record reflect that I have changed.” Mr. M is scheduled to be released from prison to join his family in April 2017.
The case was referred to Fried Frank through the Clemency Project. The Project was created in 2014 at the request of Deputy Attorney General James Cole to assist nonviolent federal prisoners who have served at least ten years of their sentence, have no other significant criminal history, and would likely have received shorter sentences today than at the time they were sentenced.
The Fried Frank team included litigation partner Douglas W. Baruch and corporate associate Roxanne Lepore.
On June 23, 2015, the firm won a grant of political asylum for pro bono client Mr. S, who is from Senegal and suffers from albinism. People with albinism in Africa are targeted for severe, indeed horrifying, persecution including murder and dismemberment due to widespread beliefs that their body parts are useful in paranormal, witchcraft ceremonies. The U.S. State Department reports that people buy and sell people with albinism in many nations throughout Africa. Mr. S could not live in the small village where he was born because of these beliefs, and was adopted at an early age by an aunt who lived in a city and sent him to school. The parents of children with albinism typically don’t send their children to school because of such severe social persecution that it is rare for a person with albinism to be able to secure a job. Despite the limitations that he was faced with, Mr. S completed high school and got a degree from a technical college. He opened a computer servicing business, and he started an organization to encourage parents of children with albinism to educate their children and teach them that they could be successful. His activism on behalf of people with albinism gave Mr. S some prominence (he was invited to and attended seminars on the plight of people with albinism in Europe and the U.S.) and ultimately caught the attention of political leaders who then targeted Mr. S and threatened to kill him and his family. His family (which includes two adopted children with albinism) fled to Mali, where they have been waiting for well over two years for Mr. S’s case to be decided. Now that Mr. S is an asylee, he can seek to bring his wife and children to the United States.
Working on the matter were Jennifer Colyer, Peter Siroka, Kristen Johnson and Stella Drevina.
Fried Frank Victory for Pro Bono Client
In federal court, Fried Frank achieved a significant result for a defendant facing an indisputable Sentencing Guidelines range of life imprisonment, when the court instead imposed a sentence of 120 months. Fried Frank secured a substantial downward departure and below-Guidelines sentence for CJA client, who was sentenced in the Southern District of New York last week. In 2014, Mr. G was indicted in connection with a sting operation orchestrated by the U.S. Drug Enforcement Agency. He was arrested in Montenegro with two co-conspirators and all three were extradited to the US to face trial on charges related to international arms trafficking. At trial, Mr. G argued that he was not an arms dealer and was only involved because he was investigating the buyers on behalf of the Central Intelligence Agency, who he had notified about the weapons deal years earlier. After Mr. G was convicted at trial, Fried Frank was appointed by the court to handle Mr. G’s sentencing and appeal his conviction.
As the result of his conviction at trial, Mr. G faced a sentence of life imprisonment under the Guidelines, and the U.S. Probation Office recommended a life sentence. Before Judge Ronnie Abrams at sentencing, Fried Frank argued that the Guidelines sentence was excessive and failed to account for both Mr. G’s attempt to assist the CIA, his past work with the FBI, and his post-arrest assistance to the DEA, which allowed the DEA to arrest a prominent former member of the Italian Parliament who was also indicted in the sting operation. Fried Frank also argued that a below-Guidelines sentence was warranted due to the application of several sentencing enhancements that overstated the severity of Mr. G’s conduct and exposed Mr. G to an unduly excessive life sentence.
Unlike Mr. G’s trial counsel, Fried Frank secured a “top secret” security clearance to access classified information in a safe room in the federal courthouse, and prepare a sentencing memorandum addendum that was filed under seal. Granting both Fried Frank’s motion for a downward departure and its request for a below-Guidelines sentence, Judge Abrams sentenced Mr. G to a 10-year term of imprisonment. Judge Abrams credited Mr. G’s assistance to the FBI, as well as Fried Frank’s arguments, in imposing a sentence that was significantly below the Guidelines.
The Fried Frank team included white collar criminal defense and securities partner Steven M. Witzel; special counsel Jennifer L. Colyer; litigation associate Michael P. Sternheim, who made the sentencing argument before Judge Abrams; and litigation law clerk Lawson Huynh. The team was assisted by many partners and associates in the Litigation Department who contributed to the sentencing memorandum and participated in moot sentencing arguments.
Victory in Housing Litigation for Elderly Client
Fried Frank acted as pro bono counsel to an elderly client, known as Ms. H, in an affirmative litigation matter against Ms. H’s landlord. The landlord violated the District of Columbia Housing Regulations by failing to remediate pervasive mold and mildew in 80-year-old Ms. H’s apartment, despite her doctor advising against living in a mold-infested apartment. Ms. H sought rent abatement, costs incurred in moving to another apartment and damages for clothing and furniture ruined by the mold. The settlement reimbursed Ms. H for 100% of the rent she paid during the period in question, as well as substantially compensating Ms. H for her moving expenses and damaged goods.
The Fried Frank team was led by litigation partner Elliot Polebaum and included litigation special counsel Eugene Hansen; litigation associate Helene Gogadze; and litigation law clerk Brendan McNamara.
Asylum Victory for Teen from El Salvador
Fried Frank acted as counsel in an asylum case in Immigration Court to a 15-year-old teen from El Salvador (RHR). His mother had died shortly after childbirth and he was raised by his grandparents. When gang violence and gang recruitment became intense, the grandparents could no longer protect the client. He left home and traveled to the U.S., hoping to join his uncle. He was apprehended shortly after entering the country and placed into removal proceedings.
Fried Frank accepted the client's case after he was released to the custody of his uncle in Baltimore, and began to pursue a case on the basis of the boy's religious beliefs and his related desire to avoid gang recruitment and membership.
The client, who was quite small and frail and appeared much younger than his age, began to be harassed and bullied in his high school. Eventually, the attacks escalated to include theft of his lunch money, property and low-level physical abuse. This finally culminated in an incident where the client was cornered in a restroom, threatened with death and robbed at knifepoint.
His Fried Frank counsel helped support him in reporting this crime and participating in the successful criminal prosecution and incarceration of the perpetrator. The Firm then applied for a U visa, available to victims of certain specific crimes who cooperate with law enforcement, on the basis of stalking and extortion. Once the U visa was approved, the Firm was able to administratively close the client's removal proceedings in Immigration Court and obtain a work permit for him. After three years in U visa status, RHR was eligible to apply for permanent residence. On March 2, 2015, after a determination that the case was strong enough to be approved without an additional interview, RHR received his green card. After 5 years, he will be eligible to apply for U.S. citizenship.
The Fried Frank team included litigation partner Doug Baruch and litigation special counsel Karen Grisez.
Third Time’s a Charm
Fried Frank pro bono client Ms. J, an Ecuadorian national, entered the United States nearly 30 years ago when she crossed the border to make a life for her family in New York. Here, Ms. J raised her two children (one is in the U.S. Air Force and the other lives in New York City), worked legally, paid her taxes, and has been very active in her church and local community, but had a long and difficult path to gain legal status in the United States. Not wanting to live here illegally, she applied in 2004 to adjust her immigration status to permanent residency when she was told that she could, based on a class action settlement. She had no lawyer, and was not prepared for the exams, and did not pass. In the meantime, her two children became naturalized U.S. citizens and in 2008, she attempted to adjust status based on a petition filed by her son. That application was denied because she had entered the country without authorization in the 1980s and was ineligible to adjust status through a family member.
When Ms. J came to Fried Frank for help through the PS 146 partnership (a school-based civil legal clinic program established in 2007 with Volunteers of Legal Service (VOLS)), she had a rolling suitcase that bulged with the documents that formed her immigration history. Her grandson was a student at PS 146, and Ms. J was his primary caretaker. It was essential that she be able to legalize her status to continue to work legally and provide a stable home in New York. Fried Frank lawyers waded through the documents and put together a chronology of her application history. They then turned to an expert, Liz Markuci at VOLS, for help in brainstorming what relief might be available to Ms. J.
Ms. Markuci is VOLS’ Immigration Project Director and mentors Fried Frank. With Liz’s mentorship, Ms. J’s pro bono lawyers filed an application for parole-in-place, a unique and relatively unknown form of immigration relief for family members of U.S. military personnel. The informal policy of enabling military personnel’s family members to obtain parole-in-place to allow them to adjust status was utilized on a case-by-case basis so that people serving in the armed forces don’t have to worry about their family members being deported. The few known examples where this remedy was successful involved spouses of military members. Here, Fried Frank tried applying for a mother. Although her children were suspicious about whether her lawyers would be able to help her to get status, Ms. J trusted Fried Frank because she had heard that they had successfully worked with other families in the school community. The family had already lost thousands of dollars seeking immigration relief in vain and they had no additional financial resources to lose.
Fried Frank lawyers then worked with Ms. J’s son, an Air Force Staff Sergeant, to file a petition in 2013. In the interim, the Department of Homeland Security issued a policy memorandum which formalized the parole-in-place policy, and included parents of military members. This was a promising development and led to the application being granted in 2014.
Fried Frank then filed an application to adjust status to become a lawful permanent resident, based on her newly granted parole status. But when her pro bono lawyer accompanied Ms. J to her adjustment interview in mid-April 2015, the USCIS officer said he thought it was impossible for Ms. J to obtain residency from her parole-in-place status. Ms. J’s lawyer then rushed to get an explanatory letter, attaching the relevant USCIS memos, to the officer.
On April 20, Ms. J was granted lawful permanent residence after nearly 30 years of living in the United States without status. She and her family are thrilled. “We never before had attempted a military parole-in-place application, and we wouldn’t have been able to without Ms. Markuci at VOLS guiding us each step of the way”, says Jennifer Colyer, Fried Frank’s pro bono counsel.
Ms. Markuci calls the lawyers who represented Ms. J “pro bono vanguards…They took on a case that there was little precedent for, in an area that was new to the firm’s pro bono practice – this is something not every firm is willing to do. Even six months after the policy was official, the USCIS officer was unaware and poised to deny the case. Fried Frank’s zealous advocacy made all the difference in the successful outcome that was achieved for this family.”
Without a lawyer, Ms. J could easily have been denied permanent residency a third time while the rest of her family are U.S. citizens. The long-standing partnership between Fried Frank, PS 146 and VOLS brings lawyers into the community to address civil legal services that can impact the security, well-being and education of a child. The innovative school-based legal clinic model serves communities that often do not have access to legal services on civil matters, and in this case, spared a member of our nation’s military from suffering fear and stress at the thought that his mother, his son’s sole caregiver, could be deported whilst he was serving our country.
Working on this matter from Fried Frank were litigation special counsel Jennifer Colyer, litigation associate Sam Mathias, pro bono coordinator Stella Drevina, and Elizabeta Markuci, Director of the Immigration Project at Volunteers of Legal Service.
Fried Frank Client Naturalized
Naomi J. first became a client of the Firm in 2009, when she sought to obtain lawful residency through the Violence Against Women Act, as the battered spouse of a US citizen. We accomplished that in 2010, and then applied for her to bring her son from Trinidad. Once her son was successfully in the US as a lawful resident, Naomi became eligible to apply for naturalization. After granting her application, USCIS sought to reverse its determination based on a factual error, but we successfully advocated for the original grant, and USCIS then scheduled her to take the oath of naturalization. On May 7, Naomi and her son became US citizens, and they are thrilled.
Naomi wrote of her Fried Frank lawyers, “I don't know what I would have done without you. I feel incredibly grateful and happy knowing that I had someone as wonderful and caring like you walking me through the entire process. My family and I all wish a heartfelt thank you for everything. I'm also happy knowing that amazing people like you with big hearts exist.”
Working on the matter were litigation special counsel Jennifer Colyer (NY) and Karen Grisez (DC), associates Nathan Grow (NY), Danielle Petrilli (NY), Minyao Wang (NY), and pro bono coordinator Stella Drevina (NY).
Continued Victory for the ACLU
Fried Frank won summary judgment on behalf of the American Civil Liberties Union (ACLU) in September 2013 in a suit against the US Department of Homeland Security and US Immigration and Customs Enforcement seeking information on immigrants detained for prolonged periods of time. The government seeks to stay enforcement of that order, and/or relief from the judgment, but the court ruled again in favor of the ACLU. Again ordering that documents be produced in response to a Freedom of Information Act request first filed in 2009, on December 30, 2013, Southern District Judge Richard Berman rejected the government's motion to reconsider a denial of its motion for a stay pending appeal of a September decision ordering the government to begin production of the related documents. The matter has been covered by the New York Law Journal, among others.
Working on the matter were litigation partner Richard Leland (NY), litigation special counsel Jennifer Colyer (NY), corporate associate Richard Tisdale (NY) and litigation associate Yonatan Jacobs (NY).
NYSBA Newsletter Features Firm’s Endeavor to Keep a Family Together
The New York State Bar Association Pro Bono News publication recently featured a Fried Frank case that involved helping a compassionate mother complete her family. Fried Frank is one of seven law firms that participate in a school-based project offered by Volunteers of Legal Service (VOLS) to build relationships between public schools and law firms; ultimately, the program aims to resolve issues that threaten to disrupt children’s education. Fried Frank associate Erica Markowitz (NY) and associate Crystal Doyle (NY) worked on the matter under the guidance of partner Janice Mac Avoy (NY) and special counsel Jennifer Colyer (NY).
L, who works at a shelter for homeless families, was introduced by a friend to T in early 2002. T was homeless and addicted to drugs, so L offered to coach her through the process of entering the shelter system and finding housing. Unfortunately, T didn't follow through. To complicate matters, T gave birth to a boy, Z, while she was constantly moving from one dangerous housing situation to another. T struggled to take care of Z and, according to L, kept "leaving him with people who she shouldn't have."
T soon consented to give L guardianship of Z and left – for good. L, who already had three daughters and spent all of her time at work, immediately accepted Z as part of her family.
For the next eight years, L raised Z as her own, although she was not his legal parent. This caused constant problems with school and government officials. L wanted to adopt Z but was daunted by the difficulty and expense associated with doing so. One day Z brought home a booklet from his school listing all the services available to families – including legal assistance. A clinic held at the school connected L with Fried Frank lawyers, who listened to her story and agreed to help her adopt Z.
After a search that took many months, T consented to the adoption but confessed that she had used an alias on Z's birth certificate. There was no documentary evidence that T was Z's birth mother. The Fried Frank volunteers had to convince T to submit to a DNA test, which proved that she is Z's biological mother and provided crucial evidence. In 2013, the court granted L's petition to adopt Z. Though L made Z a member of the family from day one, Fried Frank’s pro bono efforts made their family official.
Asylum Victory for Fried Frank Client
After litigating the case for eight years, Fried Frank prevailed on a claim for political asylum made by a man from Mauritania. Mr. L’s claim stemmed from his refusal to participate in a staged demonstration in favor of the dictatorial White Moor government, and subsequent arrest and torture. He fled from Mauritania in 2005, and Human Rights First referred his case to the Firm. Mr. L’s case suffered from unusual scheduling delays, including a six-month hiatus between his direct and cross examination testimony at his merits hearing. After the full hearing, the Immigration Judge denied his claim in 2010 despite his clear and consistent testimony which was corroborated by several witness affidavits and extrinsic documentary evidence including a police bulletin proving that he was a wanted man in Mauritania. Fried Frank appealed to the Board of Immigration Appeals, which reversed in part and remanded the case earlier this year. After extensive post-remand briefing and the submission of additional evidence, the Immigration Judge entered a final grant of asylum last week. Mr. L., who told us he had “lost hope,” is thrilled with the result. He is now able to stay in the United States, and looks forward to reuniting with his wife and children when they come from Mauritania to join him.
Working on this matter over the years were litigation special counsel Jennifer Colyer (NY), associates Emma Baratta (NY), Georgina Costello (NY), Vaishali Dangat (NY), Rodger Hurley (NY), Yonatan Jacobs (NY), Richard Polk (NY) and Craig Price (NY), and pro bono coordinator Stella Drevina (NY).
Litigation Victory for Democracy Prep Public Schools
Fried Frank won a significant litigation victory before the Commissioner of the New York State Education Department on behalf of Democracy Prep Public Schools. Since its founding in 2005, Democracy Prep has been one of New York City’s highest performing charter school organizations, providing an exceptional alternative for students and families in communities that have traditionally lacked high-quality public school seats.
Petitioners in the litigation sought to prevent Democracy Prep’s co-location with an existing adult learning program, arguing that the New York City Department of Education acted improperly by not issuing an educational impact statement prior to making a determination with respect to the co-location.
Following expedited briefing, on September 12, the Commissioner of Education dismissed petitioners' appeal of the co-location determination. Agreeing with arguments advanced by Fried Frank, the Commissioner determined that the appeal should be dismissed for failure to name the school at issue as a necessary party. Ruling on the merits, the Commissioner further determined that the adult learning program was not a “school” and thus that no educational impact statement was required under the applicable laws.
Working on the matter were litigation partner Janice Mac Avoy (NY), litigation associate Samuel Mathias (NY), former associates Adam Harris (NY) and Maribel Hernández Rivera (NY), and legal assistant Pat Foote.
Fried Frank Obtains Special Education Services for Developmentally Disabled Student
Fried Frank recently won a victory for Ms. P and her four-year-old developmentally disabled child, D, by obtaining appropriate special education services for him from the New York City Department of Education (DOE). D has severe developmental disabilities, including autism spectrum disorder. During the 2011-2012 school year, he received home-based one-on-one therapy for autism called Applied Behavior Analysis (ABA) and showed significant improvement. However, the DOE decided to discontinue D's home-based ABA therapy for the 2012-2013 school year without explanation. Ms. P pleaded with the DOE to reinstate D's services throughout the year, but was unsuccessful. During that time, D regressed. He ceased making eye contact, began having difficulty identifying his family members and became less vocal. Finally, Ms. P turned to New York Lawyers for the Public Interest for help, who referred Ms. P to Fried Frank.
Fried Frank began an administrative challenge to the DOE's decision, claiming that the DOE violated the Individuals with Disabilities Education Act and demanding that D's home-based ABA services be reinstated. Just days before the hearing, the DOE conceded and agreed to restore D's home-based ABA services and also obtained additional school-based services.
The Fried Frank team was led by corporate associate Andrew Harper (NY) and included litigation partner David Morris (NY).
Significant District Court Victory on Behalf of ACLU
Fried Frank represented the American Civil Liberties Union (ACLU) in achieving a significant litigation victory under the Freedom of Information Act (FOIA) in the US District Court for the Southern District of New York. In June 2011, Fried Frank filed a complaint on the ACLU’s behalf against the US Department of Homeland Security and US Immigration and Customs Enforcement (collectively, ICE) regarding FOIA requests by the ACLU seeking information regarding immigration detention and ICE’s compliance with regulations that govern such detention. In September 2012, the ACLU and ICE entered a partial settlement with respect to the ACLU’s FOIA requests with ICE agreeing to make certain disclosures. Also under that partial settlement, both sides agreed to contest via summary judgment whether ICE was entitled, under four specific FOIA exemptions, to 34 claimed redactions contained in a sample post-order custody review file. On September 9, District Court Judge Richard Berman ruled entirely for the ACLU and held that ICE was entitled to none of the exemptions it claimed and that it could not make any of the 34 redactions in its future production to the ACLU.
Working on the matter were real estate partner Richard Leland (NY), litigation special counsel Jennifer Colyer (NY), litigation associate Yonatan Jacobs (NY) and associates Richard Tisdale (NY) and Richard Hoberman (NY) and summer law clerk Victor Cueva.
NYC Mayor Bloomberg Unveils Post-Hurricane Sandy Building Code Proposals
Fried Frank is pro bono legal counsel to the Building Resiliency Task Force, a committee established following Hurricane Sandy to recommend revisions to New York City’s building codes, in the development of proposals aimed at improving building resiliency and maximizing preparedness for extreme weather events. On June 13, New York City Mayor Michael Bloomberg and City Council Speaker Christine Quinn unveiled the proposals – some of the most significant revisions to the City’s building code in years – as part of Mayor Bloomberg’s larger plan to protect New York City following Hurricane Sandy. The Building Resiliency Task Force includes 200-plus members overseen by the Urban Green Council, New York City's leading advocate for urban sustainability.
Led by real estate partner Tal Golomb (NY), the team includes real estate associates Holly Chen (NY), Marnina Cherkin (NY), David Firestone (NY), Hanna Gustafsson (NY) and associates Ilana Ettinger (NY), Tannaz Simyar (NY), Alexander Tanenbaum (NY).
Asylum Victory for Immigration Client from Nicaragua
Fried Frank secured a major victory in gaining asylum for Ms. R, a Nicaraguan citizen who came to the United States over ten years ago to escape violence and persecution she faced both as a lesbian woman and survivor of sexual abuse at the hands of her father. Since her arrival in the United States, she has become open about her sexual orientation and lives with her wife and partner of nine years, a Honduran political asylee. Nicaragua, despite repealing anti-sodomy laws in 2007, has witnessed a dramatic increase in anti-LGBT hate crimes and murders in the past few years, making Ms. R’s return to Nicaragua as an open, lesbian woman legally married to another woman increasingly dangerous. Ms. R sought help from Immigration Equality, which referred her to Fried Frank as part of the Firm’s ongoing partnership and commitment to pro bono work. Ms. R. and Fried Frank were able to show that Ms. R was likely to be persecuted with impunity by both regular citizens and government actors if forced to return to Nicaragua, and that her well-founded fear for her life qualified her for a waiver of the normal one-year filing deadline for asylum applications - in this case, a significant delay of approximately a decade due to recently diagnosed PTSD arising out of Ms. R’s victimization in Nicaragua. On May 3, the United States Citizenship and Immigration Services granted Ms. R asylum. Reacting to her now-lawful immigration status, Ms. R told her lawyers that she has never before felt that she was a free person.
Working on the matter were special counsel Jennifer Colyer (NY), litigation associate Jesse Loffler (NY), and corporate associates Aaron Holloway (NY) and Lorin Wagner (NY), restructuring and insolvency associate Marissa Soto (NY), and pro bono coordinator Stella Drevina (NY).
Asylum Victory for Fried Frank Client
Fried Frank won political asylum for Mr. B, a gay, HIV-positive man from Jamaica who fled the country in 2011 to escape violence and persecution from members of his own community. Mr. B’s story is unique and presented several potential hurdles to a successful outcome for his asylum application. He married a woman at a young age and fathered three children with his wife. After Mr. B and his wife separated years ago, he entered into a committed relationship with his current same-sex partner, who took an active part in helping to raise Mr. B’s children. In 2009, while Mr. B and his partner were out walking in their own neighborhood, they were pelted with rocks by an angry mob yelling anti-gay slurs. Mr. B and his partner fled to Canada but Mr. B returned to Jamaica to look after his children, who were not properly being cared for. In 2011, word of Mr. B’s diagnosis as HIV-positive spread throughout the community, and an angry mob formed outside his house, threw stones at the house, breaking windows, and shouted anti-gay slurs. With his Canadian visa having expired, Mr. B fled to the United States, where he had no relatives or friends, because he had nowhere else to go. Mr. B sought help with Immigration Equality, which referred him to Fried Frank as part of the firm’s ongoing partnership and commitment to pro bono work, and applied for political asylum in the United States within the one year filing deadline. In his asylum application and at his interview, Mr. B and Fried Frank demonstrated that Mr. B faced a well-founded fear of continued persecution were he to return to Jamaica, where anti-gay violence over the past few years has, sadly, been commonplace, and he was granted political asylum.
Working on the matter were litigation special counsel Jennifer Colyer (NY), litigation associate Mark Siegmund (NY), litigation associates Kelly McNamee (NY), Nicole Naghi (NY) and pro bono coordinator Stella Drevina (NY).
Asylum Victory for Immigration Client From Honduras
Fried Frank received a grant of asylum for Mr. H, a gay man from Honduras who came to the United States four years ago to escape the brutal attacks he had faced from family members beginning when he was a young teen because of his sexual orientation. When he first learned about the possibility of asylum, the one year filing deadline had already passed and he was unable to find a lawyer to take on his case. Last September, he learned the unfortunate news that he has HIV. Mr. H realized that returning to Honduras as a gay man who is also HIV positive would be extremely dangerous, since Honduras is now the most violent country in the world. Violence is routinely perpetrated there against the gay and lesbian population, including by the police. Because his HIV diagnosis provided a possible exception to the one year filing deadline, Fried Frank lawyers accepted the case on referral from the Whitman Walker Health Center. The Fried Frank team collected medical records, obtained a psychological evaluation, and compiled extensive country conditions evidence. At the interview, they argued that Mr. H had timely applied for asylum based on an exception to the deadline, and that he would likely be persecuted with impunity by family members, other citizens and government actors based on his membership in a particular social group if forced to return to Honduras.
Working on the matter were litigation partner Douglas Baruch (DC), litigation special counsel Karen Grisez (DC), corporate associate Alexander Abramovich (DC) and litigation associate Dwayne Bensing (DC).
Judge Overturns Restricted Access to Plan B
Fried Frank is co-counsel to the plaintiffs in a suit against the US Food and Drug Administration (FDA) regarding Plan B emergency contraception. On April 4, US District Judge Edward R. Korman granted summary judgment to the plaintiffs, a coalition of reproductive health groups and private citizens, providing a complete victory, issuing an unprecedented ruling that the FDA had wrongly ignored its own policy on switching drugs from prescription to over-the-counter (OTC) status and must allow unrestricted OTC access to Plan B, its generic equivalents and a newer version of the drug, Plan B One-Step. The matter has received widespread attention from The New York Times, Wall Street Journal, Washington Post, Bloomberg, CNN, NBC News and ABC News, among others.
Working on the matter are litigation partner Janice Mac Avoy (NY) and litigation associates Rachel Kravitz (NY), Erica Sollie (NY) and Sonya Tien (NY).
Pro Bono Client Granted Adoption
Fried Frank represented Ms. M in her successful efforts to adopt Isaiah, a child in her care since birth. As a baby, Isaiah’s birth mother gave him to Ms. M and requested that she care for him, but never returned and for years could not be located. Ms. M raised and cared for Isaiah as if he were her own. He is now eleven years old and attends PS 146, with which Fried Frank has a pro bono partnership. After the filing of adoption papers, Fried Frank was able to locate Isaiah’s birth mother, and she agreed to the adoption.
Working on the matter were litigation partner Janice Mac Avoy (NY), litigation special counsel Jennifer Colyer (NY), litigation associate Crystal Doyle (NY), former corporate associate Erica Markowitz (NY), pro bono coordinator Stella Drevina (NY), and staff coordinator Shawn Ruffin (NY).
Fried Frank Wins Time-Served Sentence in U.S. v. Mr. A.
The Firm achieved a very positive result in a criminal case before Judge Robert P. Patterson in the Southern District of New York. CJA client Mr. A. was arrested in 2007 for a wide-ranging narcotics trafficking and money-laundering conspiracy. Mr A. immediately began cooperating with a range of law enforcement entities. He was the key witness in the trial against Hector Dominguez, a co-defendant and a drug kingpin affiliated with the violent Mexican drug cartels. Mr A. continued to cooperate despite Hector Dominguez’s threats on Mr A.’s life and those of his family, and Hector Dominguez’s attempt from prison to hire a hitman to kill Mr A. Mr A. remained free on bail and cooperated with government authorities in his own case and also cooperated extensively in other government investigations through 2012.
The Government recognized Mr A.’s extensive cooperation, but still Mr. A faced a lengthy US Sentencing Guidelines range of 210-262 months’ imprisonment. Fried Frank argued for a sentence of time-served (5 days) based on, among other things, his acceptance of responsibility by pleading guilty, his remarkable self-rehabilitation since his arrest, and his extensive cooperation with multiple government agencies in the face of the death threats. Judge Patterson credited Fried Frank’s arguments and, in a courtroom crowded with approximately 25 family and friends, sentenced Mr. A to time-served, with 4 years supervised release. Despite the Probation Office’s recommendation of the imposition of a US$9,000 fine, Judge Patterson also accepted Fried Frank’s arguments on this point as well and declined to impose any fine. Christen Furka argued at sentencing.
Working on this matter were litigation partner Steven Witzel (NY), appointed by the Court as CJA counsel, litigation special counsel Jennifer Colyer (NY), litigation associate Jesse Loffler (NY), Erin Abrams (NY), Christen Furka (NY) and Christina McGill (NY).
Fried Frank Wins Below-Guidelines Sentence in US v. Mr. W.
The Firm achieved a great result in a criminal case before Chief Judge Loretta Preska in the Southern District of New York. CJA pro bono client Mr. W. was initially sentenced in 2011 for federal bank fraud; in 2012, following his release from federal custody (but while still on supervised release), Mr. W was arrested by local authorities in Connecticut and charged under state law with selling drugs. Mr. W was subsequently transferred to federal custody and charged with violating his supervised release based on his arrest in Connecticut.
Mr. W faced a US Sentencing Guidelines range of 15 to 21 months imprisonment, and the US Probation Department requested a 21-month sentence. Fried Frank successfully argued for a below Guidelines sentence of 10 months based on, among other things, his likely detention and deportation following release and his acceptance of responsibility by pleading guilty, a factor not specifically addressed by the Guidelines for violations of supervised release. Chief Judge Preska credited the argument and sentenced Mr. W to a 10 month term of imprisonment. Because Mr. W has already been in federal custody for approximately 6 months, Mr. W’s effective sentence is another 4 months imprisonment. Fried Frank also negotiated with state prosecutors in Connecticut to not press the charges on the substantive offense, which they are able to do as a separate sovereign. Fried Frank was appointed as replacement counsel in November 2012 and Joshua Roth argued at sentencing.
Working on this matter were litigation partner Steven Witzel (NY), litigation special counsel Jennifer Colyer (NY) and litigation associates Joshua Roth (NY), Emma Baratta (NY) and Jeremy Bressman (NY).
Asylum Victory for Fried Frank Immigration Client
Fried Frank secured asylum for Mr. A, a Haitian citizen who came to the United States in 2011 to escape the violence and persecution he faced for having expressed his political opinions against the then-government of Haiti. Mr. A is a 34-year-old father of two from Les Cayes, Haiti who hosted a political radio show on which he regularly expressed his negative political opinions about the government and encouraged listeners to call in and express their opinions about the then-upcoming 2010 elections. As a result, Mr. A was harassed, physically attacked outside the radio station and beaten by Haitian government actors who threatened to kill him. Fearing for his life, Mr. A fled Haiti, where the political situation has been chronically unstable since the January 2010 earthquake. He was detained and placed in removal proceedings. Mr. A sought help with Human Rights First, who referred him to Fried Frank as part of the Firm’s ongoing partnership and commitment to political asylum work. Mr. A and Fried Frank proved that Mr. A has a well-founded fear of future persecution if forced to return to Haiti. On March 28, 2013, after a merits hearing and post-hearing briefing, Judge Alan A. Vomacka granted Mr. A asylum.
Working on this matter were litigation special counsel Jennifer Colyer (NY), litigation associate Charlene Barker (NY), corporate associate Chad Borden (NY) and pro bono coordinator Stella Drevina (NY).
Fried Frank Prevails for Pro Bono Client Mr. K
Fried Frank won an extraordinary victory for CJA client Mr. K., who was facing a potential 9-to-11-year sentence in federal court under the sentencing guideline range. Mr. K. was a 43-year-old man with no criminal record when he became addicted to crystal methamphetamine after using it at social gatherings. He subsequently was laid off from his job at a major publishing company in 2008, and started to sell the drug to feed his habit and pay his expenses. He also helped arrange for several large interstate shipments of crystal meth packages to New York. After he was arrested in late 2011, he immediately agreed to cooperate and was able to help the DEA make a major case, but he could not get the “guidelines don’t apply” favorable treatment that cooperators ordinarily receive because he could not stop using crystal methamphetamine while he was released on bail, and accordingly the government would not enter into a cooperation agreement.
Mr. K pleaded guilty in September 2012 and was remanded to the federal prison in Brooklyn. Fried Frank lawyers then engaged in extensive and ultimately successful efforts to convince the government to recognize our client’s efforts at cooperating, and the circumstances of his addiction, at sentencing. The government put in an unusual and very helpful written submission on both of those points, yet the Probation Department recommended a sentence of 108 months in prison nonetheless. At sentencing, we convinced the court that a great degree of leniency was appropriate given all of the circumstances of Mr. K., and the court sentenced him to 7 months’ incarceration, with 5 years’ supervised release to follow, and required drug addiction treatment. Mr. K will be released from prison in April and will shortly thereafter enter into an in-patient drug rehabilitation program for several weeks to help him transition successfully back into civilian life.
Working on the matter were litigation partner Steven Witzel (NY), litigation special counsel Jennifer Colyer (NY), litigation associate Justin Santolli (NY) and Eric Dwoskin (NY).
Litigation Victory for Innocence Network
The Firm represented the Innocence Network (the national arm of the Innocence Project) as amicus curiae in an actual innocence case in Ohio. Douglas Prade was convicted of murder in 1998 based in large part on "bite-mark identification" evidence and questionable eyewitness testimony presented by the state of Ohio at trial. For several years, the state resisted post-conviction DNA analysis that would use techniques that were unavailable at the time of trial. Ultimately, the court ordered the additional DNA testing, which produced results excluding Mr. Prade as a source for the DNA. Leveraging the expertise we gained in representing the Innocence Project in a bite-mark case in Mississippi, the firm submitted an amicus brief that described the significant scientific problems associated with the use of bite-mark identification evidence. The brief also went into the science of eyewitness identification evidence and urged post-conviction relief.
On January 29, 2013, the court granted the relief requested by the defendant, finding that Mr. Prade was actually innocent of the crime for which he has spent the past 15 years in prison.
Working on the matter were litigation partner Michael de Leeuw (NY), litigation special counsel Jennifer Colyer (NY) and litigation associate Erin Abrams (NY).
Appellate Victory in Asylum Case
The Firm scored a major victory by winning a reversal from the Board of Immigration Appeals from a denial of asylum for client NK. Ms. K is from Uzbekistan, where she was twice detained by Presidential Guard security forces who tortured and repeatedly raped her for having demonstrated for a democratic government to replace the authoritarian president Islom Karimov, who has ruled brutally since 1990, and speaking out for women who were domestic violence victims. Ms. K fled to the US, but failed to apply for asylum within one year of the expiration of her visa, as required. At trial, Ms. K demonstrated that she suffered from PTSD due to the torture she was subjected to, through testimony from three experts. The Immigration Judge found that Ms. K’s testimony about the torture she suffered was credible, and awarded her relief from removal under the Convention Against Torture, but denied her application for political asylum because she failed to meet the one-year deadline and had not proven a reasonable excuse for failure to file. This meant that Ms. K could never petition for her husband to stay in the US, and could never obtain lawful permanent residency or become a US citizen. We immediately appealed to the BIA. Ms. K and her husband, a fellow Uzbek, had two children.
In December 2012, five Immigration Customs Enforcement agents came to Ms. K’s apartment in Brooklyn at 6:00 a.m., intending to arrest her husband for being out of lawful status, and remove him to Uzbekistan. Ms. K managed to stave them off, showing her documents that made clear that she had an appeal pending and that once she won it, she would be able to file an application for her husband. The ICE agent in charge then talked to Ms. K’s Fried Frank attorney, and decided that he would wait for the appeal to be decided before proceeding against Ms. K’s husband.
On January 15, 2013, the BIA reversed the Immigration Judge. On appeal, Fried Frank successfully argued that the Immigration Judge had committed clear error when he held that Ms. K did not suffer from PTSD, because that finding had no evidentiary basis. Further, the BIA held that Ms. K had demonstrated that her PTSD was a legally sufficient excuse for failure to file. The panel of three BIA judges sent the case back to Immigration Court for the IJ to enter a grant of asylum once Ms. K passes security clearances. She can immediately apply for her husband to obtain derivative asylum status, and after one year they can both seek lawful permanent residency. Ms. K, a graduate of Westminster University in Tashkent, intends to go to medical school.
Working on the case were associates Jacqueline Burke (NY), Jennifer Kim (NY), Rachel Kravitz (NY) and Michael Savicki (NY), special counsel Jennifer Colyer (NY), and paralegal Stella Drevina (NY).
Fried Frank Secures Trial Victory in Major Civil Rights Case
Fried Frank secured an important trial victory for our clients, the Louisiana NAACP and Luther Scott, in a major civil rights case against officials of the State of Louisiana in federal court in New Orleans for violations of the National Voter Registration Act (“NVRA”). Fried Frank, along with our co-counsel, the NAACP Legal Defense Fund and Project Vote, conducted a trial in October before Judge Jane Triche-Milazzo. The court issued its opinion on January 23, finding that all three state agencies involved had violated key provisions of the NVRA. The court issued a permanent injunction and awarded fees and costs.
The trial team consisted of litigation partners Michael de Leeuw (NY) and Israel David (NY) along with litigation associate Jesse Ryan Loffler (NY), litigation associates Erica Sollie (NY) and David Yellin (NY).