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Case number 15-7016 at L. Rene Arturo Lopez at L Appellant vs. Council on American Islamic Relations Action Network, Inc.

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Mr. Yushalami for the appellant and Ms.

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Wiggs for the appellee.

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May it please the Court, my name is David Yerushalmi, and I have the distinct honor and privilege of representing the plaintiffs of palance in this matter, Mohammed Brock, Tula Abdusalam, Bayan Anour, Iftikhar Saeed, Akwila Turner, and Rene Lopez.

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This appeal arises from and stands for the proposition that facts matter.

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More importantly, the aggregate of the facts in the totality of the circumstances and all of the reasonable inferences matter even more.

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The trial court erred in mishandling the facts in three distinct ways.

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First, the court improperly weighed or balanced the probative weight of the evidence.

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While the brief cite to several examples, there are two poignant

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examples that I might mention here today.

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The first is where Care National, a national organization here in Washington, D.C., took possession of all of the victims' legal files, and certainly my client's files, from the Care Virginia operation where the fraud had taken place.

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Care National is a legal public interest law firm.

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You took those files after the discharge of Mr. Day?

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Yes, Your Honor.

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So what does that tell us about whether Care had any control over him before he died and before they took his father?

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Because the only way that Care National could have taken possession of those files, if one, they considered Care Day's an attorney working for Care National, as he had represented to my clients,

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or two, they had tortiously converted the files.

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They had no rights to take possession.

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Under Virginia law, those legal files belonged strictly to the clients, and they had no legal privilege if they were not the attorneys of record who had utilized Mr. Day's

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legal representation to take possession.

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So it's either one of two.

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Now, Care National likes to spin the tail to say, we were simply being good Samaritans.

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Fine.

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So they violated Virginia Code of Professional Ethics, and they violated or breached a duty owed to my clients not to torturously convert those files.

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It sounds like one way to one way to answer

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The question, I guess, is that whatever it might say about control, because I think there's a factual, there's a physical issue that it's hard to say that you're controlling somebody when that somebody is no longer around.

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Whatever it might say about control, it says something about consent.

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That's correct, Your Honor.

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It speaks to whether CARE assumed that it had a consensual agency relationship with Days because in the absence of a consensual agency relationship, it would have been very legally problematic to take the files.

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That's correct.

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We would also assert that it does speak circumstantially to control.

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But there's another aspect in this case that does speak directly to control that the court simply engage in a balancing or weighing of the evidence.

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Specifically, as we know, in Virginia, control is either the ability to control or actual control.

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Actual control is the higher standard.

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In this case, beyond the ability, because Mr. Iqbal was paid for and employed by Care National to supervise Care Virginia, he was at Care Virginia doing that job, at the same time wearing a separate hat as the executive director of Care Virginia and supervising Mr. Days.

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It is our position that those facts give rise to at least a reasonable inference

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that Mr. Iqbal could have controlled days, but we have a case of actual control.

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In July of 2007, Mr. Iqbal learns that days had taken fees or cost from clients in violation of care policy.

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What did he do?

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He sent an email to Mr. Day saying, you must come in and we have to sit down and fix this problem.

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I'll confer with Care National, and maybe we might even have to draft the policy together.

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But it's improper.

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Where did he send that email from?

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He sent the email from his Care Virginia server, but he specifically signed it.

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as Director of Care Operations Care National.

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That signature block is important.

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What did the court say?

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The court said, and I'm quoting, and this is the entire analysis below, nor does the court find it at all consequential that Iqbal used his Care National email letterhead and title in the course of supervising days.

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Corporations are legal fictions.

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The only way we distinguish between a legal fiction and a fiction simply or an abuse of corporate formality is the way corporate officers sign their name.

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If you sign your name to a promissory note or to a contract, how you sign your name, individually or in a corporate

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authority or position dictates whether you have individual liability or you are representing the corporate entity.

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The trial court below simply said, I find it inconsequential.

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How?

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There's no analysis.

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That's clearly weighing the consequences of that implication.

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If it's undisputed that Iqbal was supervising Mr. Days,

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And if it's undisputed that Iqbal, at the time he was doing that, was an employee of Care National, he might have been seconded to Care Virginia's offices, but no one claims that he wasn't still an employee of Care National.

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Why isn't it

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at least an issue of fact as to whether Care National is supervising Mr. Days.

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Well, that's exactly right, Your Honor, and that's the point we made.

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It is the ability of control.

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He was an employee of Care National, paid by Care National.

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Care Virginia did not pay any of his salaries.

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And his job was directly related to supervising the chapters, including Here, Virginia.

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And that was one of the arguments that we made about the direct agency relationship.

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The second way the court mishandled the facts below is that it had simply ignored facts or dismissed them as not relevant.

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An example, all of the plaintiffs testified, and we cite to it in our opening brief at page 8 and our reply brief at footnote 2, the specific testimony.

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that when they first visited Mr. Days, he told them that he was both a CARE Virginia resident attorney and manager of the Civil Rights Department, but also that he was an attorney for CARE National.

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He emphasized to my clients it was that relationship that gave him the reach and the ability to represent them effectively.

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He showed them, according to the testimony, current articles and pamphlets

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praising Mr. Days as a care national lawyer.

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Now, there's no evidence of those in the record.

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They weren't disclosed by the defendant during production.

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But that doesn't deny the fact that the testimony is that they existed.

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The court didn't even address that fact.

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What the court did do was look at the one article

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It was posted on the CARE national website in December of 2007 and said, this article certainly does speak to Mr. Days as a CARE national lawyer.

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There was other articles speaking and praising Mr. Days as a CARE Virginia lawyer.

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He wore two hats.

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But this particular news article, it was posted without comment.

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and without any caveat that Mr. Days was a care national lawyer, appeared.

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The court said it's not relevant because it occurred after they retained Mr. Days.

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They could not have relied on that.

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As we point out, I think in excruciating detail in the opening brief, that's simply because the court misunderstood the distinction between our apparent authority position that we took to oppose the motion for summary judgment and ostensible agency.

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The only time reliance occurs or comes to an issue is under ostensible or implied agency.

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We're not making that argument.

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We're not making the argument that there was no actual agency, and the only way you get there is through the behavior of the principal that was relied upon by the third party.

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We're saying that there was actual consent at the time that Mr. Bays began working, and the evidence is clear.

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CARE would not have posted that article if they, as Your Honor pointed out earlier, hadn't considered there to be mutual consent at the beginning of the relationship.

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Why would they have posted in December of 2007 or 2016 if at the time when they entered into that relationship with Mr. Days, they had not assented to his relationship?

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They would have put up a caveat or contacted the newspaper and said, this man has nothing to do with us.

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The third way the court has handled the evidence below is that it took what Virginia law requires to typically be a question of fact for the jury, the totality of the circumstances, because much of this- Just move you back a second.

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Do you agree, just briefly- Your Honor, could you just- Was part of your, the last part of your argument that, that the, uh, Karen National's failure to contact the news medium for a correction bears on this question?

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No.

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I might have extended it that far, but the basic argument is a law firm does not place a newspaper article that this man is an attorney for that law firm on its website, and then later, after that attorney commits tortious fraud, we have nothing to do with them.

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That evidence shows reflectively back that they did ascent to his agency.

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Otherwise, why would they have posted the article in the first place?

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The third aspect.

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You can definitely imagine situations in which there's a national corporation that's a separate corporation from local chapters, but the national corporation takes pride in the work of the local chapters and so trumpets it on its website.

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Sure.

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But as a law firm, it better be careful about how it represents that relationship.

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And law firms are, in fact, careful.

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And indeed, we would even accept that as a narrative spin of the evidence for the jury.

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But the reasonable inference still exists, and that goes in plaintiff's favor.

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So you're characterizing CARE as a law firm.

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Do they accept that?

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I'm sorry.

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Does CARE agree with your characterization that CARE Nationally did as a law firm?

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The evidence in the record.

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So this is a, if not disputed, a non-acquiescence?

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I would even assume that it's disputed, Your Honor, that it's a disputed fact.

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They don't characterize themselves as a public interest law firm, but they conduct their affairs, and we made this argument below, as a public interest law firm.

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They have attorneys that represent people, individuals in the public domain pro bono.

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And that is the definition of a public interest law firm.

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Well, and at some point, they reached out to Dave's clients to talk about it.

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Not exactly, Your Honor.

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What the record shows is they put a recording at Care Virginia until they closed it down.

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It said, Mr. Dayes, an independent contractor, which he was not, according to the little report.

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He was an employee of Care Virginia.

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He's no longer working at Care Virginia.

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Contact him directly.

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No, but I thought at some point that there was direct interaction between National Care and Dayes's, I guess their former clients at this point, but former clients to decide how to deal with the fallout.

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When we get there, there was a second letter that was drafted, again for care of Virginia, saying essentially the same thing.

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There was no evidence that it was actually mailed, but that it was drafted.

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If individuals contacted CARE Virginia after they had fired Daze and the files had been moved, they said, you can contact CARE National if you can't reach Mr. Daze.

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If they reached out to CARE National, then they would have this discussion.

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And oftentimes, it was in the case of my clients, Mr. Daze was an independent contractor, had nothing to do with us, take a hike.

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In some cases, they settled and paid money.

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But in the main, they made no effort to reach out to the clients.

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They simply collected the files.

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And if we believe them, they went through the files to see what kind of exposure they had.

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And that was the extent of their involvement.

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I see that I'm out of time, Your Honor.

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Does anyone have further questions?

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Thank you.

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on behalf of CARE national.

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Starting where the court left off, the evidence was that after this was discovered, and there's clear, there's many documents in the appendix that talk about the discussions at CARE Maryland slash Virginia, the action of CARE Maryland slash Virginia in dealing with Mr. Days, there's no,

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evidence in there that Care National was aware of this other than Mr. Iqbal through his, I mean, I think of it is that he had two jobs.

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He had one job where he's literally in the Virginia office supervising the work there.

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There's clearly memorandums and emails that just go to the people at that chapter office.

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And at no time does, there's one email saying, well, maybe we should discuss this with Care National.

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There's no evidence that there was a discussion back in July of 2007.

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But ultimately, in February of 2008, when this really comes to head, it is Care Virginia that asked Care National, can you please assist us?

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Because we don't have anyone here.

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They didn't actually have a lawyer.

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there wasn't anyone else in the civil rights section in the department of that chapter, so they asked the civil rights department at the national office if they could assist in figuring out what to do about all of the clients of the civil rights department.

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And what we're talking about there is not people that Mr. Day's

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through his fraud said that he was a lawyer and said he was going to do legal work on their behalf, but the actual clients of the department that the organization was doing advocacy for, not legal work, but there was no one else employed at that chapter that could do that work.

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So at that point, and I believe it's in February of 2008, is when Care National gets involved and tries to figure out what are these cases, what can we do about it.

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I'm not quite sure I understand the relevance of the fact that there was nobody left to do the work because

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Maybe there was nobody left to do the work, but the relevant fact is that Care National becomes involved.

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The reason for that, I'm not sure, matters all that much.

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The reason for that is because Care Virginia slash Maryland, or Maryland slash Virginia, asks Care National to get involved.

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Right, but then Care National does get involved.

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And it just seems to me that all we're asking is the question of whether a jury can draw an inference.

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not whether you might win at the end of the day.

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But I don't think any, the request by the chapter of National to get involved at that point does not go to whether or not the principal, which would be Care National, had an agent relationship with Mr. Dates.

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I think the point that Mr. Dates isn't even,

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Just as an aside for a moment, whether or not he was an employer or independent contractor of CARE Virginia is an issue, but he was paid on a 1099.

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So they were saying he was a contractor.

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It's throughout the documentation that's in the appendix, they were saying that he was a contractor.

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Regardless of that, though, there is no information

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The information in the records is that he told the plaintiffs that he had some connection to Care National.

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If you look in the appendix, and it's JA 122 to 26, and JA 118 to 121, are two pieces of evidence, and the first site has to do with the news articles that are on the Care National website.

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And you'll see very clearly in the sections that what is put is CARE slash MD slash Virginia.

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So the section that's citing to the article, that's citing to the video, is clearly stating that that's a chapter.

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That's not CARE National.

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Can we look past the article for a second and talk about the client files?

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So CARE National takes possession of the client files.

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Yes.

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That's in the record.

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Isn't there a problem with that for you, at least with respect to getting to the jury?

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Because if Daze's clients are not Care Nationals' clients, but are only Care Virginia's clients, why is Care National taking the files?

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because Care Virginia asked for assistance.

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But even if they asked for assistance, if they're not, there's a serious issue about taking over client files, isn't there?

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Well, they're not legal clients.

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At that point, while Mr. Days claimed to be a lawyer, there was no

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legal work that CARE of Virginia was doing on behalf of its clients.

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So there are, and there are still to this day, CARE... Were they legal files or not?

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They were client files and that they were, they were characterized as a client of the CARE chapter, but they were, the retainer which is in the appendix clearly states that the chapter is not providing legal services.

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So

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It's characterized as a client file because it is a client of the nonprofit operating business, Care of Virginia.

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Did anyone put in the record a retainer agreement between Care National and Care of Virginia?

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In other words, saying that Care National was acting as counsel for Care of Virginia.

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I think in depositions, it's talked about that at Care Virginia's request that Care National came and got the files and basically inventory them to figure out what needs to be done for those people.

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And there's no agreement in the record of how a chapter interacts with Care National, right?

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There's no written agreement.

[00:20:44] Speaker 01:
there's there's no written agreement in the record between that chapter and although there are documents like the application to become a chapter reference a written agreement yes and there's certainly lots of information about how the board in Virginia functioned and made decisions and made decisions about mr. days and is there any written agreement in the record about

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what Mr. Iqbal's duties and responsibilities were as an employee of CARE Virginia and how that related to his duties and responsibilities vis-a-vis CARE National.

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I don't think there's a document.

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I think that he's listed on their IRS form as the acting executive director 15 to 20 hours a week.

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There's certainly

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There's lots of information about the board meetings that he's present at as the acting executive director of the chapter there's one specific occasion where he Apparently misrepresented something that he thought had happened at the board meeting and he's corrected about it There's very little

[00:22:04] Speaker 01:
But there's no nothing.

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I guess here's the problem that I have with with your position is that normally these are questions of fact.

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Unless there's you know pretty clear documentation.

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to resolve the issue.

[00:22:22] Speaker 05:
We don't have any documentation.

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We don't have any documentation about what Iqbal's roles and responsibilities are.

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We don't have any documentation about what the chapter's relationship is with respect to the national.

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We don't have any documentation as to exactly what role the national had when it took over these files.

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And we do have a circumstance where an employee of the national is also an employee of the chapter, and he is clearly supervising the tort fees are here.

[00:23:00] Speaker 05:
So I don't understand why all that doesn't add up to this has got to be decided by a jerk.

[00:23:06] Speaker 01:
Because I think under the theory that appellant is putting forward here, they're saying that Daze was a direct agent of Care National.

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But there's nothing they can point to that anyone in their position as a Care National employee consented to his acting as a lawyer without a license.

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I mean, regardless of the fact that they didn't know he had a license.

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But there's no fact to point to that Care National consented to him acting as an agent of Care National in representing these people.

[00:23:44] Speaker 04:
The fact that they took the files.

[00:23:46] Speaker 04:
That just seems to me to be, there may be an explanation for it, but it seems like you could also draw the inference that Care National wouldn't have taken files about Day's clients unless Care National thought that Day's was acting on Care National's behalf, because otherwise you have a problem with

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And getting client files.

[00:24:03] Speaker 01:
The fact there is that it's because Care Virginia asked Care National to assist them with this.

[00:24:09] Speaker 01:
I mean, it was an absolute disaster at that point.

[00:24:12] Speaker 04:
Sure.

[00:24:12] Speaker 04:
It might have been.

[00:24:13] Speaker 04:
And that could be.

[00:24:14] Speaker 04:
I still don't understand why that is dispositive.

[00:24:16] Speaker 04:
But at the very most, it seems like it's an argument that could be made to the jury.

[00:24:22] Speaker 04:
or to the finder of fact, that really, yeah, it's true that Care National took the files, and yes, perhaps that might suggest without knowing any more that Care National had some kind of relationship with Day's and therefore Day's clients, because otherwise, how could it possibly take somebody else's clients?

[00:24:39] Speaker 01:
And I think the way the court dealt with that below and the way that I see it is because there's nothing before that.

[00:24:44] Speaker 01:
That is totally in relationship to the finding out about this situation and how are we going to deal with it.

[00:24:53] Speaker 05:
Why isn't the fact that Iqbal is there every day supervising Lopez before that?

[00:24:59] Speaker 05:
And he's a Care National employee.

[00:25:01] Speaker 01:
I think you mean supervising dates.

[00:25:04] Speaker 05:
I'm sorry, supervising dates.

[00:25:06] Speaker 01:
I think Iqbal serves two different masters, so to speak.

[00:25:10] Speaker 01:
He is an agent of CARE Virginia, and he is an agent of CARE National.

[00:25:15] Speaker 01:
But all of the evidence points to that it's the board at CARE Virginia and Iqbal that makes decision about dates.

[00:25:23] Speaker 01:
That's what the evidence is that is before the court in making this decision.

[00:25:27] Speaker 01:
There's no evidence that anyone

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in a position from Care National, then it's not Iqbal in his position from Care National.

[00:25:35] Speaker 01:
I don't think so, because there is evidence.

[00:25:36] Speaker 01:
It's Iqbal who's being supervised by the board in Virginia.

[00:25:40] Speaker 04:
No, but also the email chains, I mean, we're getting into the minutiae, but the email chains that involve Iqbal, he sends emails not only to Care Virginia people, but to Care National people, and the Care National people respond.

[00:25:53] Speaker 04:
And they say, you know what, I'd like to look at the letter.

[00:25:55] Speaker 04:
I'd like to look at the letter that's going out today before it goes out.

[00:25:59] Speaker 04:
If there's an email that says that, maybe there's an explanation for it, and you might be right.

[00:26:03] Speaker 01:
But I think the problem is that's once the problem is discovered.

[00:26:07] Speaker 04:
I don't understand why that matters, because it's true that that happens once the problem is discovered, but it sheds light on the nature of the relationship before the problem is discovered, because otherwise, why is Care National even saying anything?

[00:26:17] Speaker 04:
I think that what the argument that could be made to the jury is, yes, it's true that this is after the problem's discovered, but it tells us that Care National must have assumed that it had some kind of relationship with days before the problem was discovered.

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Otherwise, why are they even in the mix?

[00:26:31] Speaker 01:
And I think what the judge is looking at is we've had discover, we have depositions, and there isn't any evidence of that.

[00:26:38] Speaker 01:
And so it's a leap in logic to say, well, then there must have been something.

[00:26:44] Speaker 01:
If you've deposed all the witnesses, and you've done discovery, and you have all the paperwork, and there isn't anything else there, it is an absolute leap in logic to say, well, then there must have been something.

[00:26:57] Speaker 04:
Well, it's not a complete leap in logic, because as Judge Wilkins has pointed out a few times, there's the undeniable fact that Iqbal, who was at least operating in a dual capacity, was there the whole time.

[00:27:08] Speaker 01:
Right, but you also have the evidence that points to the fact that when he's dealing with days and all of the issues around that chapter, it's going, his, who he's acting for is the board of that chapter.

[00:27:20] Speaker 01:
He's not going to the Board of Care National to say, how much should we pay days?

[00:27:24] Speaker 01:
He's going to the Board of Care Virginia.

[00:27:30] Speaker 01:
I think

[00:27:31] Speaker 01:
I'm going over, I've gone over my time.

[00:27:32] Speaker 01:
If there's any other questions, I'm pleased to answer them, but otherwise I'd ask the court to affirm the decision below.

[00:27:39] Speaker 01:
Thank you.

[00:27:40] Speaker 04:
Thank you.

[00:27:44] Speaker 04:
No time left for rebuttal.

[00:27:45] Speaker 04:
We'll give you two minutes for rebuttal.

[00:27:47] Speaker 03:
Very briefly, Your Honors.

[00:27:50] Speaker 03:
I just start with the proposition that the trial court actually cited the correct law, citing mostly to a courtier of Virginia Insurance Agency under Virginia law, quoting, whether an agency relationship exists is a question to resolve by the fact finder unless the existence of the relationship is shown by undisputed facts or by unambiguous documents, written documents.

[00:28:12] Speaker 03:
As Judge Wilkins pointed out, the fact is, is that all of the relationships here were amorphous and ambiguous.

[00:28:21] Speaker 03:
Iqbal had no written agreement, either with Care National or Care Virginia.

[00:28:25] Speaker 03:
Care Virginia had no written franchise or chapter agreement with Care National.

[00:28:30] Speaker 03:
It was all oral.

[00:28:32] Speaker 03:
How they conducted their affairs matters, and it would matter to the fact finder.

[00:28:38] Speaker 03:
While there's a lot of evidence, not the least my client's testimony about what Mr. Days said his relationship with Care National was, about him showing them publications of Care National taking credit for Mr. Days as a Care National lawyer, I again want to go to the record at 1391.

[00:28:57] Speaker 03:
That's the email in July of 2007.

[00:29:01] Speaker 03:
when Mr. Iqbal determines that Morse Days, aka Brother Jamil, had taken funds from various clients.

[00:29:10] Speaker 03:
Not the plaintiff's appellants in this matter, it was another matter.

[00:29:13] Speaker 03:
The record is clear that he didn't talk to the Care Virginia Board about this matter at all.

[00:29:18] Speaker 03:
He didn't raise it with the CARE Virginia Board, apparently from the letter, possibly only with CARE National.

[00:29:24] Speaker 03:
How does he sign this email?

[00:29:26] Speaker 03:
He signs it in his strict corporate capacity as a CARE National Director of Operations.

[00:29:32] Speaker 03:
And what makes it unusual, when I send out an email from my

[00:29:37] Speaker 03:
law firm, the email automatically places my law firm's signature block.

[00:29:42] Speaker 03:
If I send it out from a public interest law firm that I'm working with, it automatically sends out my public interest law firm and my personal email, my personal signature block.

[00:29:52] Speaker 03:
Mr. Iqbal would have had to place this specifically

[00:29:55] Speaker 03:
on his CARE Virginia email to make the point that I'm speaking to you as a CARE National Director of Operations and supervising your violation of policy in a matter that relates directly to this case.

[00:30:09] Speaker 02:
How do we know you would have to make that choice when it wasn't on the matter?

[00:30:12] Speaker 02:
I'm sorry?

[00:30:13] Speaker 02:
I'm sorry.

[00:30:13] Speaker 02:
How do we know that you had to make that choice and that the insertion of the signature block wasn't automatic?

[00:30:18] Speaker 03:
We don't know for fact, but it at least raises the reasonable inference that allows us to go to a jury and let them hear the testimony.

[00:30:27] Speaker 03:
Thank you, Your Honors.

[00:30:28] Speaker 04:
Thank you.

[00:30:29] Speaker 04:
The case is submitted.