Monday, August 22, 2011

Information to State Fair Stage Collapse Victims Seeking Legal Assistance

In the State of Indiana, there are very specific deadlines that must be met in order for an individual (or family member of a loved one lost) to notify the State or other governmental entities of a potential tort (injury) claim or lawsuit.  Failure to meet these tort claim notice deadlines can result in a plaintiff forever losing the right to file a claim.  The deadlines are also different depending upon whether the potential claim is against the State of Indiana or another governmental entity (such as a City, County or other public entity).  For some governmental entities, the tort claim notice deadline can be as short as 180 days (6 months) from the date of injury.  For claims against a private party (individual, corporation, etc.), the deadline to file a lawsuit (called the “statute of limitations”) is typically between one and three years from the date of the accident.  Because of these deadlines and their impact on any potential claims that victims of the State Fair tragedy may have, it is important for those injured in this incident to promptly seek the assistance and counsel of an attorney licensed to practice law in the State of Indiana.  An attorney who routinely handles plaintiff’s personal injury cases will be able to analyze the facts of each individual case and identify all deadlines applicable to that case.

It is important for people to know that contacting an attorney does not mean that they have to file a lawsuit.  Seeking the guidance of an experienced personal injury attorney, even before the investigation into the cause of the State Fair stage collapse is completed, will allow those injured in this tragic accident to be fully informed as to their rights and all important deadlines should the facts support a valid claim against any responsible parties.  Individuals and family members of those affected by this tragedy should ask questions of any attorney they contact and find out what experience they have handling claims involving structural collapses and construction safety and whether that law firm has the capacity to devote a substantial amount of resources, both in terms of attorneys and staff, to handling claims arising out of an incident of this magnitude.

I would like to first express my deepest sympathies to the victims and families of those injured in this tragic incident at the State Fairgrounds.  My thoughts and prayers are with all of you during your time of sorrow and recovery.  This tragedy has touched the lives of everyone in Central Indiana and I sincerely appreciate the efforts of the first responders and public citizens who came to the aide of those injured in this incident.

Please contact me at 317-432-3443 or if you have any additional questions.

Indiana’s New Class Action Rule Helps Low Income Hoosiers

In late September 2010 the Indiana Supreme Court announced an amendment to Indiana Trial Rule 23, concerning class actions, which goes into effect on January 1, 2011. This amendment added a new subsection (F) concerning the disposition of residual funds from the class action award or settlement, and the most interesting thing about it is that it mandates that a minimum of 25% of those funds go towards funding for pro bono legal assistance for low income Hoosiers.

Residual funds can be quite common in class actions, especially consumer class actions, with large classes of people, each of whom has suffered only a small amount of damages. In such situations when class members do not submit claims, cannot be found, or do not cash their settlement checks money is left after all other expenses and distributions are made. Residual funds are defined in this new rule as “funds that remain after the payment of all approved class member claims, expenses, litigation costs, attorneys’ fees, and other court approved disbursements.”

In the past when there were residual funds from a class action settlement or award the courts, with input and argument from counsel for the parties in the class action, were left to decide what to do with that money still sitting there. The options available included returning the money to the residual funds to the defendants, having it escheat (return) to the government, pro rata distribution among the remaining class members, or cy pres distribution.

The adoption of this rule makes clear that in Indiana all residual funds must be distributed under the principles of cy pres distribution. The term “cy pres,” which is loosely defined as “as near as possible,” has its origin in trust law, and is an equitable doctrine. Basically, the idea behind it is to as nearly as possible distribute the funds in a manner which the class action members would want it to go, which has typically been to a charity somewhat related to the objectives of the underlying litigation.

The interesting thing about Indiana’s new rule regarding the residual funds is that instead of giving the court wide discretion over the entirety of the funds, it makes a presumption that at least 25% of the funds will automatically be disbursed to the Indiana Bar Foundation, which supports the Indiana Pro Bono Commission and the 14 pro bono districts serving low income Hoosiers.2 The additional balance not distributed to the Indiana Bar Foundation may go to “any other entity for purposes that have a direct or indirect relationship to the objectives of the underlying litigation or otherwise promote the substantive or procedural interests of members of the certified class.”

All in all Indiana appears to have provided Indiana judges and class action counsel with needed guidance in distributing these residual funds, and also created a cleverly funded source of income for a typically under funded, but critically needed issue in Indiana, pro bono representation of low income Hoosiers. Hopefully this new rule will help alleviate some of the financial stress the Indiana Pro Bono Commission, and the 14 pro bono districts within the state of Indiana have been working under because of budget slashing and shrinking in recent years so that more Hoosiers can get the legal representation they need.

Friday, August 12, 2011

Is Fishers Town Council President Scott Faultless a valid council member?

Fishers Town Council President Scott Faultless moved out of his district during his term before he could have the council redraw the district maps to put him back in his district.  They have since redrawn the maps to incude his new address into his old district.  Here is a story written by the IndyStar.

FISHERS, Ind. -- Democrats in Fishers are calling on Town Council President Scott Faultless to resign, charging that he recently moved to a house outside the district from which he was re-elected four years ago.
The move -- from Geist Ridge Drive to Whitten Drive, a few miles to the north -- took him outside his council district as it was drawn at the time of his election on Nov. 6, 2007, according to complaints filed with the town this week. The Town Council approved new boundaries for its districts later that month -- Nov. 19, 2007 -- as a way to stay on top of population growth and keep districts balanced.
"He has mistakenly moved into District 7 that was established after the election," said Joe Weingarten, a Democrat running for town clerk-treasurer, who sent reporters an email late Monday with the allegations. The new home, he said, sits in what was District 4 before the redistricting.
Faultless, a Republican, denies the claim.
"This is completely false, and I have no intention of resigning," said Faultless, who has been on the council since 1996.

However, since he moved out of the district, is he an eligible council member?  Democrats want him to resign.  Is it up to him to resign?  Or is he automatically off the council?  Here is the relevant statute.  What are your thoughts?

IC 36-5-2-6
Residency requirement
Sec. 6. (a) A member of the legislative body must reside within:
(1) the town as provided in Article 6, Section 6 of the Constitution of the State of Indiana; and
(2) the district from which the member was elected, if applicable.
(b) A member of the legislative body who is elected by the voters of a district forfeits office if the member ceases to be a resident of the district.
(c) A member of the legislative body who is elected by the voters of the entire town but is elected or selected as a candidate from a district forfeits office if the member ceases to be a resident of the district.
(d) An at-large member of the legislative body forfeits office if the member ceases to be a resident of the town.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.3-1987, SEC.561; P.L.3-1993, SEC.275.