A Message from the Director

Angelo Ancheta, KGACLC Director

Happy Holidays! The past year, which marked the Centennial of the Santa Clara University School of Law, has been a highly successful one for the Katharine & George Alexander Community Law Center.

As we highlight in this edition of our newsletter, the past year saw a series of successes, including victories in consumer protection litigation, immigration applications, and workers’ rights cases. The story of Mr. and Mrs. K, our Thai clients whose dramatic and powerful case is featured in this issue, and the story of Mr. M and his wife (p. 6) provide just some examples of our work. Indeed, we served hundreds of clients through our interviewing and counseling clinics and helped educate community members about their rights through our educational workshops, which cover key areas of law such as workers’ rights, consumer fraud, and landlord-tenant law.

We also highlight a new partnership with the Silicon Valley Independent Living Center (SVILC) that expands our interviewing and counseling services that we conduct in conjunction with the Legal Aid Society-Employment Law Center. We are now offering advice clinics with the SVILC to help ensure that individuals with disabilities are able to exercise their workplace rights in areas such as wage and hour claims, unemployment, and discrimination. This program offers new experiences for our law students and helps diversify and expand the KGACLC’s base, in addition to providing key services to clients.

The past year saw some transitions in the Alexander Community Law Center family as well. Erika Henderson joined the staff this fall as our financial administrator, focusing on grant administration and program development. Erika worked previously at the Superior Court of Santa Cruz County, and prior to that at the University of California, Santa Cruz.

We welcome Caroline Chen, who is the new director of the Low-Income Taxpayer Clinic (LITC) at Santa Clara University. Although the LITC is a separate program from the Alexander Community Law Center, it will be housed at the Center as it begins operations and enrolls clinical law students in January 2012. Caroline is an experienced tax attorney who has worked for the federal government and in private practice.

In addition, we saw the departure of two KGACLC staff over the past several months. Rani Reddy-Gil, our financial administrator, recently moved with her family to the Sacramento area. James Lindfelt, a recent alum and fellow at the Alexander Law Center, will be joining his firm, Pillsbury Winthrop Shaw Pittman LLP, which generously sponsored his fellowship during the past year. We wish them the best in their new positions.

As always, we want to thank all of our students, volunteers, and supporters who have worked with the Community Law Center throughout this year. Our students continue to be our most important asset, combining their legal training with key services to low-income clients. The Community Law Center’s work would not be possible without them. Through the work of our students, staff, and volunteers, we were able assist over 1,000 individuals in our various programs.

Of course, the government agencies, law firms, foundations, and individuals who provide financial support to the Center remain in our deepest gratitude. We cannot thank you enough for this support, and we hope that you will sustain your efforts in the coming year to guarantee that we remain a vibrant resource for Santa Clara University and the local community.

Best wishes,

Angelo Ancheta

As KGACLC law students delve into their case, they discover that human trafficking and work-related abuses go hand-in-hand

Iustina Mignea ’12 and Karen Wynholds-Schulz ’10

Thanks to former and current law students Karen Wynholds-Schulz ’10, Iustina Mignea ’12 and Nicole Hess ’11, the Alexander Community Law Center provided its clients a one-stop solution for their immigration and workers’ rights issues. As the students delved into the case, they discovered that a common form of human trafficking, at least in the South Bay, involves forced labor and work-related exploitation.

Mr. and Mrs. K traveled to the South Bay from Thailand over two years ago, lured by promises of employment by a former colleague of theirs, a US resident, who offered to triple their salary once in the United States. Soon after their arrival, they started working at one of the restaurants owned by their former colleague-turned-boss. They earned $40 to $45 per 10-to-12-hour shift. Initially, Ms. K bused tables but was soon required to “train” in the kitchen. She received no compensation at all during her six-week training period.

There were other conditions of employment, too. For instance, the couple was obligated to live in the boss’ house, and all rent and utility expenses were subtracted from their salaries. They also took care of many domestic chores, in addition to their work at the restaurant. Additionally, they were obligated to purchase a car for their use, but the title of the car was held under the boss’ name. They had to make a down payment of $5,000, and the monthly car and insurance payments were deducted from their paycheck automatically. All these expenses left very little money for personal use.

By the end of 2010, the couple had grown tired of the increasingly long hours, their vanishing salaries and the mounting stress associated with the deteriorating relationship with their boss and landlord. When they hinted that they would be leaving the house, their boss warned that they would lose their jobs and that she would report them to immigration officials – a threat she had made repeatedly in the past. Given their possible escape, the boss also threatened to call the police if they did not surrender their car immediately. Much to their dismay, the couple gave up the car, which by then had been paid in full.

“The shocking part about this is that I used to live very, very close to the restaurant – I know the place!” says Wynholds-Schulz, who worked on the immigration component of the case during her last year of law school. “This means that if it happens in my neighborhood, then it can be happening anywhere else as we speak, and we don’t even know it!” Having worked on a similar case at the Alexander Law Center that involved domestic servitude and violence, she noted that although Mr. and Mrs. K’s case did not involve physical abuse, the mental abuse can be just as damaging.

Human trafficking brings to mind images of people being transported into the country by unscrupulous individuals with clear plans to force victims to work in sweatshops or similar settings. In fact, perpetrators do not necessarily have to be directly involved in the transportation of individuals across borders. As it relates to labor, Section 214.11(a) of the Code of Federal Regulations, Title 8, provides that “severe forms of trafficking in persons means…the recruitment, harboring, transportation, provision or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery.” Clearly, the restaurant owner in this case had crossed various lines of the law when she recruited, harbored and coerced the couple into performing many tasks at her restaurant and her home.

Mignea inherited the case from Nicole Hess. They were both involved in the worker rights part of the case, but Mignea can attest to some of her immigration colleague’s observations. “Working with our clients was very rewarding but also very challenging because they were emotionally drained, so it was difficult to assess the number of hours that they had worked over many months under much stress.” The husband, Mignea recalls, was not very talkative during the first few interviews, “so we decided to interview them separately, and that technique seemed to work.” She learned other things in this case that re-affirmed her interest in law, as well as things that are not always so straight-forward. For instance, she observed that her clients were uncomfortable seeking payment for some of the tasks they had performed at the boss’ home. Although her clients did not acknowledge it explicitly, Mignea figured that this had to be cultural issue that she had to respect.

These three students shared notes, techniques, victories and setbacks during their handling of this case. Their constant interaction highlights the close cooperation that exists among the different legal components of the Alexander Law Center. In fact, when the clients first came to discuss their labor-related issues, their case was flagged as a potential human trafficking case that deserved prompt attention. For the clients, dealing with a single agency ameliorated an already stressful situation. As for results, while Mr. and Mrs. K have received immigration relief, their labor-related settlements is still being negotiated.

A recent Supreme Court decision is likely to limit consumers’ ability to defend their rights collectively through class actions

Scott Maurer, KGACLC Consumer Rights Supervising Attorney

The Supreme Court was interpreting the provisions of the Federal Arbitration Act (FAA). Prior to the 1925 passage of the Act, courts were frequently refusing to enforce contracts between businesses to arbitrate their disputes. The stated purpose of the Act was to place arbitration agreements on an equal footing with other contracts. The FAA preempts state laws which discriminate against arbitration clauses, but such clauses are subject to the same kinds of defenses which exist at law or in equity for the revocation of any contract.

California courts had repeatedly held that class action bans in any kind of consumer contract are unenforceable. In 2001, a court refused to enforce a consumer contract clause requiring any litigation to take place in Virginia, where class actions are not permitted. The court held that “[t]he unavailability of class action relief ... is sufficient in and by itself to preclude enforcement of the ...forum selection clause.” America Online, Inc. v. Superior Ct., 90 Cal. App. 4th 1, 17-18 (2001). In 2002, another court found that by inserting a class action ban in its credit card agreements, a bank “ha[d] essentially granted itself a license to push the boundaries of good business practices to their furthest limits, fully aware that relatively few, if any, customers will seek legal remedies.” Szetela v. Discover Bank, 97 Cal. App. 4th 1094, 1101 (Cal. App.

Scott Maurer, KGACLC Consumer Rights Supervising Attorney
4th Dist. 2002). In 2004 the California Supreme Court noted that class action bans can act as exculpatory clauses when the amounts in controversy are likely to be small. It held that adhesion contracts containing arbitration clauses with class actions bans were unconscionable and unenforceable.

Justice Scalia, normally a critic of broad federal preemption, penned the majority decision in AT&T Mobility. Although the vast majority of FAA Supreme Court jurisprudence had focused on putting arbitration agreements on an equal footing with other contracts, Scalia claimed that the FAA essentially expressed a strong federal policy favoring arbitration over litigation. To buttress his argument, Scalia pointed to a section of a House report extolling the virtues of private arbitration. This is especially ironic given Scalia’s usual hostility to legislative history. Scalia felt that a class action in arbitration would be too risky for a business defendant and therefore class actions were incompatible with arbitration. The court ultimately held that California’s jurisprudential rules limiting class action bans stood as an obstacle to the goals of the FAA, and that such rules were preempted.

There can be little doubt that all - or nearly all - consumer contracts will contain class action bans going forward. It is only a matter of time until we see whether or not industry treats these bans as a license to push the boundaries of good business practices to their furthest limits.