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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision

Desser v. Ashton

This opinion addresses the sufficiency of an oral contract to satisfy the "purchaser-seller" requirement in a private action under Section 10(b) of the 1934 Exchange Act and Rule 10b-5, where no actual purchase or sale of securities occurred. The court considers whether such an oral agreement, even if potentially unenforceable under the statute of frauds, can support a federal securities claim. Reviewing existing jurisprudence, the court emphasizes a liberal and flexible construction of anti-fraud provisions to protect investors. It concludes that an action under Rule 10b-5 is not deficient merely because the contract relied upon is oral rather than written. Consequently, the defendants' motions for summary judgment are denied, and the case is set to proceed to trial, affirming the court's jurisdiction over the matter.

Securities fraudOral contractsRule 10b-5Purchaser-seller requirementStatute of fraudsPendent jurisdictionSummary judgmentFederal court jurisdictionExchange Act of 1934Investor protection
References
18
Case No. MISSING
Regular Panel Decision

City of New York v. State

This case addresses the constitutionality of Chapter 5 of the Laws of 1999, which attempted to rescind New York City's commuter tax for New York State residents while retaining it for out-of-State commuters. The City of New York challenged the statute on home rule grounds, while residents of New Jersey and Connecticut, along with the State of Connecticut, argued it violated the Federal Constitution's Privileges and Immunities and Commerce Clauses. The Court held that Chapter 5 did not violate state home rule provisions. However, it found the statute unconstitutional under the Federal Privileges and Immunities and Commerce Clauses due to its discriminatory treatment of out-of-State commuters. Consequently, the 'poison pill' provision of Chapter 5 took effect, leading to the repeal of the entire New York City commuter tax as of July 1, 1999.

Commuter TaxHome Rule ProvisionsPrivileges and Immunities ClauseCommerce ClauseConstitutional ChallengeState TaxationTax DiscriminationNew York CityLegislative PowerStatutory Repeal
References
40
Case No. MISSING
Regular Panel Decision

Polak v. Continental Hosts, Ltd.

The case involves two plaintiffs, Jack and Anthony Polak (shareholders of Continental Hosts, Ltd.), who filed a class action complaint alleging a violation of Rule 10(b)(5) of the Securities Exchange Act of 1934 against Continental Hosts, Ltd. and individual defendants. The Merger Plaintiff claimed the $12 per share merger price was inadequate and the Delaware appraisal right was an unfair burden. The Disclosure Plaintiff alleged selling shares at an artificially low price due to defendants' failure to disseminate financial information. The court, citing Santa Fe Industries, Inc. v. Green, held that an inadequate merger price and state appraisal rights do not constitute fraud or manipulation under Rule 10b-5. It also found no duty of disclosure for non-reporting companies or for individual defendants, and that the "disclose or abstain" rule only applies to contemporaneous traders, which the Disclosure Plaintiff was not. Consequently, the defendants' motion to dismiss the complaint was granted, with pendent state law claims also dismissed.

Securities LawRule 10b-5Motion to DismissClass ActionShareholder RightsCorporate MergersDuty to DiscloseInsider TradingDelaware LawFederal Jurisdiction
References
22
Case No. ADJ2154380
Regular
Jul 21, 2010

SPENCER DAVIS vs. CLARK & SULLIVAN, INC., LWP CLAIMS SACRAMENTO, BERKSHIRE HATHAWAY SAN FRANCISCO, BERKSHIRE HATHAWAY PASADENA

In this case, the defendant sought to disqualify a Qualified Medical Evaluator (QME) due to their alleged unavailability for deposition within 120 days as required by Administrative Director Rule 35.5(f). The Workers' Compensation Appeals Board (WCAB) denied the defendant's petition for removal. The WCAB found that Rule 31.5, which allows for replacement panels, does not apply to QME unavailability for deposition. Furthermore, the Board determined the defendant failed to demonstrate significant prejudice or irreparable harm, especially after rescheduling the deposition themselves.

Petition for RemovalQualified Medical EvaluatorDeposition UnavailabilityAdministrative Director RuleMandatory RegulationPrejudice and HarmReplacement PanelWCJ OrderUpper Extremities InjuryPsyche Injury
References
0
Case No. MISSING
Regular Panel Decision
Apr 17, 1990

Claim of Rogers v. Evans Plumbing & Heating

The claimant appealed a decision from the Workers’ Compensation Board, filed on April 17, 1990, which ruled his application untimely. The claimant had applied on August 31, 1988, to review two Workers’ Compensation Law Judge decisions from August 5, 1985, and October 1, 1985, denying compensation benefits for a period between February 7, 1983, and September 23, 1985. The Board correctly determined that the claimant's application was untimely as it was filed more than 30 days after the original decisions, citing Workers’ Compensation Law § 23 and 12 NYCRR 300.13 (a). The Board's decision to not entertain the untimely application was found to be neither arbitrary nor capricious. The higher court subsequently affirmed the Board's decision.

Untimely ApplicationWorkers' Compensation LawAppellate ReviewBoard DecisionProcedural TimelinessJudicial ReviewAppealSection 23NYCRR 300.13Claimant Benefits
References
1
Case No. MISSING
Regular Panel Decision

Claim of Palminteri v. Lex Fire Protection Corp.

This appeal concerns whether Public Service Mutual Insurance Company validly canceled an employer's workers' compensation policy before a claimant sustained an occupational disease. The Workers' Compensation Board ruled the policy was in effect, concluding that the insurer, like a premium finance agency, had to provide 10 days notice to rectify a default as per Banking Law § 576. This Court reversed, clarifying that insurers are subject to Workers’ Compensation Law § 54 (5) for cancellations due to nonpayment, which mandates 10 days notice but does not require an opportunity to cure the default. Unlike premium finance agencies, insurers do not act as agents of the insured when canceling policies on their own behalf. The case was remitted to the Board to determine if Public Service strictly complied with Workers’ Compensation Law § 54 (5).

Insurance policy cancellationPremium finance agencyBanking Law § 576Workers' Compensation Law § 54 (5)Notice requirementsStatutory interpretationInsurer obligationsEmployer insuranceOccupational diseaseAppellate review
References
7
Case No. MISSING
Regular Panel Decision

HS Equities, Inc. v. Fleet

This case involves a stock brokerage firm (plaintiff) that erroneously sent 600 shares of AHP preferred stock to Anne B. Fleet (defendant) in 1968, instead of common stock. Mrs. Fleet subsequently sold these preferred shares in 1970. The plaintiff initiated legal action in June 1976, alleging that Mrs. Fleet's sale of the stock was fraudulent and seeking recovery under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, as well as common law claims of conversion and money had and received. The defendant moved to dismiss the complaint. The court granted the motion to dismiss, ruling that it lacked subject matter jurisdiction because the plaintiff was neither a purchaser nor a seller of the shares, a prerequisite for a claim under Section 10(b). Consequently, the pendent state claims were also dismissed.

Securities Exchange ActRule 10b-5Subject Matter JurisdictionPendent JurisdictionFraudStock TransactionShare TransferTimeliness of ClaimsMotion to DismissFederal Civil Procedure
References
3
Case No. ADJ9772365 (MF) ADJ10082338
Regular
Dec 06, 2016

Leonel Hidalgo vs. Hilbert Property Management, Technology Insurance Company

The Workers' Compensation Appeals Board (WCAB) dismissed the applicant's Petition for Reconsideration, treating it instead as a Petition for Removal. The WCAB granted removal, rescinded the Joint Findings of Fact, and returned the matter for further proceedings. This action was based on the Medical Director applying the incorrect standard when determining that an orthopedic QME panel was in the applicant's medical interest. The WCAB found that the Medical Director should have first determined if the applicant's chosen chiropractic specialty was medically or otherwise inappropriate, as required by Administrative Director Rule 31.5(a)(10).

Workers' Compensation Appeals BoardQualified Medical EvaluatorQME panelspecialty determinationorthopedicschiropracticMedical DirectorAdministrative Director RuleLabor CodePetition for Reconsideration
References
9
Case No. ADJ9623223
Regular
Aug 04, 2015

KORI HARDING vs. ABM INDUSTRIES

The Workers' Compensation Appeals Board affirmed a finding that an applicant was entitled to a chiropractic QME panel. The Board found the defendant's objection and request for an orthopedic QME panel did not comply with Rule 31.5(10) as the Medical Unit did not determine the initial specialty was "medically or otherwise inappropriate for the disputed medical issue(s)." Newly discovered evidence of disc herniation was deemed insufficient to change this outcome, as the initial determination was flawed. The WCAB affirmed the original award directing use of the chiropractic QME panel.

Workers' Compensation Appeals BoardQualified Medical EvaluatorQME PanelMedical UnitPrimary Treating PhysicianChiropractic CareOrthopedicsRule 31.5(10)Industrial InjuryReplacement Panel
References
3
Case No. MISSING
Regular Panel Decision

Gambella v. Guardian Investor Services Corp.

Plaintiff George Gambella alleged that defendants Guardian Investors Services Corporation and John McQueen violated federal securities law (Section 10(b) and Rule 10b-5) and various state laws. Gambella claimed McQueen, a sales representative for Guardian, fraudulently failed to execute sell orders for his 25,000 shares of United Entertainment Corporation (UENT) stock in January 1997, falsely stating the shares were illiquid. Gambella suffered over $100,000 in losses when the UENT stock became valueless due to alleged price manipulation by McQueen's former employer and others. Defendants moved to dismiss, arguing Gambella lacked standing under Rule 10b-5 as he was fraudulently induced to retain securities, not purchase or sell them. The Court granted the motion, agreeing that the 'aborted purchaser-seller exception' was not applicable post-Blue Chip Stamps, thus dismissing the federal claim and the remaining state law claims for lack of diversity jurisdiction.

Securities FraudRule 10b-5Section 10(b)Motion to DismissStandingAborted Purchaser-Seller ExceptionBlue Chip Stamps RuleBirnbaum RuleFraudulent InducementRetention of Securities
References
18
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