Firm Wins Illinois Appellate Victory for Pro Bono Client in Car Insurance Dispute
Jenner & Block is proud of its 2019 pro bono results:
A team represented Robert Nixon, a 72-year-old veteran. At issue in the long-running case was Mr. Nixon’s auto insurance policy, which the insurance company refused to honor after he was involved in an accident.
In 2014, Mr. Nixon purchased a used car and acquired an auto insurance policy from Direct Auto Insurance Company. When Mr. Nixon was in an accident a few months later, Direct Auto refused to cover him and rescinded his policy, claiming that Mr. Nixon had lied on his insurance application because he had not listed his cousins as members of his “household.” Because Direct Auto refused to defend Mr. Nixon’s insurance claim, a lawsuit by the other driver in the accident resulted in a default judgment against Mr. Nixon, as well as suspension of his driver’s license for driving without insurance.
Direct Auto sued Mr. Nixon in the Circuit Court of Cook County, seeking a declaratory judgment that it was not obligated to indemnify him in light of its rescission. Mr. Nixon retained the pro bono assistance of another law firm, who took to the case to trial in the Circuit Court of Cook County. After a bench trial, the Circuit Court ruled for Mr. Nixon, holding that Direct Auto was obligated to indemnify him for the accident. The circuit court also held that Mr. Nixon had not lied on his application and that Direct Auto had deliberately made its application confusing and misleading. The circuit court held that Direct Auto’s rescission of the policy was “vexatious and unreasonable” and imposed the maximum allowable sanction under the Illinois Insurance Code, awarding an additional $60,000 to Mr. Nixon.
Direct Auto appealed, and the firm stepped in to represent Mr. Nixon. On September 30, 2019, the Illinois Appellate Court affirmed the judgment for Mr. Nixon. The appellate court agreed with the firm that even if Mr. Nixon’s cousins were members of his household (which they were not), that purported misrepresentation would have been immaterial and would not have justified rescission of the policy. The time for Direct Auto to appeal to the Illinois Supreme Court
elapsed on January 8, 2020.
Associate Leigh J. Jahnig drafted the response brief, with assistance from Associate Nathaniel K.S. Wackman. Partners John Mathias, Jr., and David M. Kroeger supervised the drafting. Paralegal Mary Patston provided invaluable assistance.
Firm Secures Below-Guidelines Sentence for Client
Through the firm’s work serving on the Criminal Justice Act panel in the United States District Court for the Southern District of New York, a team of associates secured a favorable and unexpected outcome in a pro bono matter.
The case involved a 23-year-old client who had a significant prior criminal record and who was subsequently charged with selling relatively large quantities of drugs on 12 occasions to an undercover officer.
Associate Tali Leinwand led the case, with assistance from Associate Logan J. Gowdey and supervision from Partners Anthony S. Barkow and Katya Jestin.
The team negotiated a plea agreement with the government shortly after the client's arrest that reduced the mandatory minimum sentence from 120 months to 60 months. Despite the government's recommendation for an incarceration term of at least 100 months, and a Sentencing Guidelines range of up to 150 months' incarceration, the client was ultimately sentenced to a below-Guidelines term of 72 months in prison.
During the sentencing proceeding in December 2019, Chief Judge Colleen McMahon praised Ms. Leinwand's "very eloquent" oral argument and her and Mr. Gowdey's "excellent brief," telling the client how fortunate he was to have received such "excellent lawyering" and specifically citing favorable policy arguments that were set forth in the brief. The client was very appreciative as well.
Over the course of the representation, the team was also assisted by Associate Matt Phillips, summer associate Idun Klakegg, and paralegals Ricia Augusty and Charlotte Stretch.
Fourth Circuit Revives Maryland-Based Census Suit
The firm secured a pro bono victory on behalf of the National Association for the Advancement of Colored People (NAACP), Prince George’s County, Maryland, and other plaintiffs that are challenging the federal government’s plans for the 2020 Census. Co-counsel with the Rule of Law Clinic at Yale Law School, the firm argues that the Bureau’s deficient plans will lead to an undercount of communities of color, leading to inequities in political representation and federal funding.
Originally filed in 2018, NAACP et al. v. Bureau of the Census was dismissed in 2019 at the district court level. On December 19, 2019, the Fourth Circuit reinstated the suit, remanding it back to the district court to reconsider the plaintiffs’ Enumeration Clause claims. The unanimous three-judge panel concluded that the district court “erred in dismissing the plaintiffs’ Enumeration Clause claims as unripe, and in precluding the plaintiffs from filing an amended complaint regarding those claims after the defendants’ plans for the 2020 Census became final.”
Partner Jessica Ring Amunson argued the appeal with a student from the Yale Law Clinic. The team also includes Partners Susan Kohlmann, Jeremy Creelan and Michael Ross; Special Counsel Seth Agata; Associates Jacob Alderdice, Amy Egerton-Wiley, Logan Gowdey, Alex Trepp, Matthew Phillips, Keturah James and David Clark; Law Clerk Andrew Whinery; and Paralegal Esmeralda Bako.
“This decision gets us closer to a more just 2020 Census and shines a light on the critical issues at stake in the decennial census,” Ms. Amunson said in a press release about the decision.
At the NAACP’s annual meeting in July 2019, the organization honored the team with its “Foot Soldier in the Sand Award” for its efforts in the case.
The NAACP suit is the second suit the firm has filed, pro bono, seeking to ensure that the census adequately counts hard-to-count populations. The firm also represents the Center for Popular Democracy Action and the city of Newburgh, New York, in a suit that seeks an injunction that would require the government to implement a plan to ensure that hard-to-count populations will be enumerated. Filed in November 2019, Center for Popular Democracy Action and City of Newburgh v. Bureau of the Census is pending.
Firm Wins $11 Million Jury Verdict for Imprisoned Pro Bono Client after Failed Cancer Diagnosis
On December 17, a unanimous jury in Springfield, IL returned a more than $11 million verdict for incarcerated pro bono client William Kent Dean. The jury found that Wexford Health Sources, Inc. and several of its employees violated Mr. Dean’s federal civil rights (8th Amendment, deliberate indifference) and committed both institutional negligence and medical malpractice under Illinois law. With a team led by Jenner & Block Chair Craig C. Martin, the result concluded a seven-day trial before US District Judge Sue Myerscough in the Central District of Illinois.
Mr. Dean has stage-4 metastatic kidney cancer, which is terminal. While imprisoned in the Taylorville Correctional Center in central Illinois, he began showing obvious signs of serious illness, including gross hematuria, or visible blood in his urine, in late 2015. Despite his alarming symptoms, Mr. Dean did not receive proper diagnostic testing for four months and did not receive surgery for seven months. Jenner & Block was appointed as his pro bono counsel in 2017.
“We are very pleased that the jury saw fit to compensate our client and his family for the tragic events surrounding his care. The delays in providing that care essentially have become a death sentence for Mr. Dean,” said Mr. Martin. “As his pro bono counsel, every member of our team has been privileged to tell his story, give a voice to his suffering and make the defendants accountable for this very serious error in care.”
At issue in the case was Wexford’s policy of “collegial review,” a process intended to address clinically appropriate and cost-conscious care that Wexford used instead to avoid paying for necessary care. From December 2015 to July 2016, while Mr. Dean was held at Taylorville Correctional Center, the delays occasioned by collegial review allowed Mr. Dean’s cancer to grow and metastasize. In closing, Mr. Martin asked the jury to consider not only the pain, suffering and mental anguish Mr. Dean had endured, but also the opportunity to send a message to Wexford that collegial review cannot be used to delay care.
The jury’s award included an assessment of $10 million in punitive damages against Wexford itself.
In addition to Mr. Martin, Jenner & Block trial team members included Partner Joel Pelz and Associates William M. Strom, Chloe Holt and Nathaniel K.S. Wackman. The team was assisted by paralegals Dan Rooney, Kevin Garcia and Eric Herling. In addition to their service, several trial members also provided their services pro bono, including trial director Dylan Green of Green Legal Technology and the trial graphics professionals, Kent and Val Bell of Discoll Bell LLC.
On January 28, 2020, Mr. Dean was released from Illinois Department of Corrections custody upon completing his prison sentence. He was picked up from Taylorville Correctional Center by his wife, Cynthia Dean, and called his lawyers at Jenner & Block during their drive home to La Salle County, Illinois. Mr. Dean had been in custody since 2010. He will now begin a three-year term of court supervision to complete his sentence.
In February 2020, the Chicago Lawyer magazine highlighted the case in a feature article.
The case name is Dean v. Wexford Health Sources, et al.
Lawsuit Seeks to Ensure that 2020 Census Counts Hard-To-Count Populations
Jenner & Block has filed a lawsuit seeking to ensure that the US government alter its “deficient” plans for the 2020 census so that hard-to-count populations are counted.
Co-counsel with the Rule of Law Clinic at Yale Law School, the firm represents the Center for Popular Democracy Action, a New York-based non-profit that works to “expand the voice and power of workers, communities of color and immigrants on issues of economic and racial justice,” and the city of Newburgh, located in the Southern District of New York. Newburgh is home to large Hispanic American, African American and undocumented populations, making it a hard-to-count community for the 2020 Census.
The complaint describes the risk of a constitutionally and statutorily deficient census, which is used to allocate public funding, for seat apportionment in the US House of Representatives and to create state legislative districts. Specifically, according to the complaint, the government’s Final Operational Plan “drastically and arbitrarily reduces the necessary resources for key activities,” the complaint reads. It asks that the court hold unlawful five Census Bureau actions, including plans to hire an unreasonably small number of enumerators and a drastic reduction in the number of field offices.
“These decisions are not supported by reason. They will inevitably cause a massive and differential undercount of communities of color,” the complaint reads.
Among other things, the lawsuit seeks an injunction that would require the government to implement a plan to ensure that hard-to-count populations will be enumerated in the census.
The team that filed the complaint included Partners Jeremy M. Creelan and Susan J. Kohlmann, Special Counsel Seth H. Agata , Associates Jacob D. Alderdice and David J. Clark and Law Clerk Keturah James.
Judge Rejects Motions to Dismiss, Orders Discovery in Class Action for Veterans with PTSD
On November 7, a Jenner & Block team secured a significant pro bono victory on behalf of thousands of Navy and Marine Corps veterans when a federal judge rejected the Secretary of the Navy’s request to dismiss a nationwide class action against the Navy Discharge Review Board (NDRB) and the US Department of Defense for issuing less-than-honorable discharges to veterans suffering from undiagnosed PTSD.
In addition to denying the government’s motion, Senior Judge Charles S. Haight, Jr. of the District of Connecticut ordered the case to proceed discovery and directed the Navy to reconsider the requests to upgrade to Honorable the discharge characterizations of firm client Tyson Manker and of John Doe, a member of the organizational plaintiff National Veterans Council for Legal Redress (NVCLR).
“Today’s ruling, in time for Veterans Day, reaffirms the rule of law and brings us one step closer to getting justice for every veteran who was unfairly dismissed from the military with post-traumatic stress disorder, traumatic brain injury, and military sexual trauma, and denied their honorable discharge,” said Manker in a press release announcing the judge’s order to proceed.
In March 2018, Manker, a veteran of the 2003 invasion of Iraq, and NVCLR filed a federal class action lawsuit on behalf of former Marines and sailors suffering from PTSD, who were unfairly dismissed from the military and denied their honorable discharge. The lawsuit seeks to ensure the fair treatment of veterans who have or would be subjected to unfair procedures during the review process in front of the NDRB.
On November 16, 2018, a judge certified the class action against the NDRB and US Department of Defense. The government went on to advance multiple arguments that, as the Court summarized, “seem to relate exclusively to the individual circumstances of Tyson Manker and John Doe.” But Judge Haight rejected these contentions, emphasizing that in fact thousands of veterans would likely be affected by the litigation: “Manker and Doe play important roles in this opera, but there are other soloists, a chorus, and a full orchestra—a fair analogy, given that the Court has certified a class of Navy and Marine Corps veterans…”
“As many as one-third of the more than two million men and women who have served since September 11, 2001, suffer from PTSD or other mental health conditions in relation to their service. Many of these veterans obtain less-than-Honorable discharges, often for minor infractions related to their mental health,” said Garry Monk, executive director of NVCLR. “Veterans with ‘bad paper’ are often cut off from the very benefits that would allow them to successfully transition back to civilian life, and instead suffer a lifetime of stigma, barriers to employment, and ineligibility for crucial state and federal benefits.”
“When veterans seek to correct these unjust discharges, the Navy denies the vast majority of their applications, contrary to statute and to Department of Defense policies designed to provide relief to veterans with service-related PTSD and other conditions,” said Samantha Peltz, a law student intern in the Yale Veterans Legal Services Clinic. “Despite its claims of improved compliance with Defense policies, over the past two years, the Navy has granted less than 20% of discharge upgrades for applicants with mental health claims. The court’s decision today is another step towards justice for veterans who served their country and came home only to face daunting hurdles in seeking care for the wounds of war.”
Acting as co-counsel with Yale Law School’s Legal Services Organization Veterans Clinic, Jenner & Block represents veterans who say they were denied the Honorable upgrade because they had undiagnosed mental health issues, such as PTSD. Associates Jessica A. Martinez and Jeremy H. Ershow have led the firm team since the complaint was filed in early 2018. Associate Nicole Taykhman also made the oral argument in federal court on the motion. They are overseen by Partners Susan J. Kohlmann and Jeremy M. Creelan.