Minami Tamaki is receiving inquiries from
employees, consumers, businesses, and community members regarding a wide range
of legal issues related to coronavirus (COVID-19) in the San Francisco Bay
Area. Recognizing the need for reliable
information and assistance, Minami Tamaki has formed a Coronavirus (COVID-19) Task Force to address legal issues arising
in the ongoing pandemic.
The Minami Tamaki Coronavirus (COVID-19) Task Force is addressing issues including:
Employee Rights. Providing information to employees regarding sick leave entitlement, wage and hour issues, unemployment benefits, telecommuting issues, layoffs / furloughs / shutdowns / reduced schedules, and WARN Act compliance.
Health and Safety. Addressing public health issues related to wearing masks at work, OSHA compliance, and retaliation for raising issues regarding employer obligation to provide a safe workplace.
Refunds for Cancelled Events and Memberships. Investigating legal action regarding cancelled concerts and festivals (including tickets purchased through sites such as StubHub and Ticketmaster), cancelled professional sports, gym memberships, and theme park memberships.
Price Gouging. Taking action against sellers who have raised prices on major necessities to excessive levels to extract profits from consumers.
Business Interruption Insurance Claims. Counseling policy holders on insurance coverage of business losses due to coronavirus. While some insurance policies exclude pandemics, other policy holders may be able to seek coverage protecting against economic losses.
Commercial Contracts. Advising clients on contractual issues, including “force majeure” clauses and whether parties are excused from performance of duties.
If you have questions regarding legal issues
arising from the ongoing pandemic, you may contact the Minami Tamaki
Coronavirus (COVID-19) Task Force online or call us at 415-788-9000.
*The contents of this article are for informational
purposes only and does not constitute legal advice. Readers should
contact a licensed California attorney to obtain advice with respect to any
particular legal matter. Information on this website may not constitute the
most up-to-date legal or other information.
Use of this website does not create an attorney-client relationship
between the reader and Minami Tamaki LLP.
This week, in Babb v. Wilkie, the U.S. Supreme Court held in an 8-1 decision (Justice Thomas dissenting) that federal employees can sue for age discrimination if any part of a personnel action was tainted by age bias, even if age was not the “but-for” cause of the personnel decision. This is a lower burden for federal employees compared to the standard applied to private-sector employees bringing age discrimination claims.
The Age Discrimination in Employment Act (“ADEA”) is a federal law that protects workers 40 years of age or older from age-based discrimination from as early as the application process all the way through termination. Thus, an employer cannot fire, refuse to hire, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of their age.
The ADEA is applicable to employers with 20 or more employees, including state and local governments. The ADEA contains a separate provision applicable to federal employees, section 633a(a), and the different treatment of that provision was highlighted in the Supreme Court’s decision in Babb.
In Babb v. Wilkie, Noris Babb was an employee with the U.S. Department of Veteran Affairs. She claimed that she had been subjected to personnel actions that involved age discrimination. The ADEA provision at issue states in relevant part: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.”
Generally, cases under the ADEA require the employee to show that age is the “but-for” cause of an employment decision; that is, the employer is liable only if the employment decision would not have occurred but for the employee’s age.
In Babb, the federal employer argued that even if age played a part in the employment decision, the federal employer cannot be liable unless the employee or applicant can show that the decision would have been favorable to them if age had not been taken into account. The Supreme Court decided that while age must be the but-for cause of the discrimination, age did not necessarily have to be the but-for cause of the personnel action itself.
To illustrate, the Court gave this example. There are two employees up for promotion – 35-year-old Employee A and 55-year-old Employee B. The employer’s promotion policy gives numerical scores based on non-discriminatory factors. Then, candidates over 40 years of age are docked 5 points—a discriminatory factor. Employee A’s score, based on non-discriminatory factors, is 90, and Employee B’s score is 85. Then, Employee B is docked 5 points because of his age and ends up with a final score of 80. Employee A is promoted based on the final scores.
Even if Employee B had not been docked the 5 points, Employee A would have been promoted anyway. Thus, the discriminatory practice of docking 5 points was not the but-for reason that Employee B was not promoted.
However, as the Court points out, the promotion decision was not made “free from any discrimination based on age” because the discriminatory practice was there. For federal employees, this would still be a violation of the ADEA. Thus, even if Employee B would not have been promoted anyway, the federal employer would still be liable for age discrimination. In these kinds of situations, employees may not be entitled to damages, such as back pay or compensatory damages, but employees may be entitled to forward-looking relief, such as an order precluding the employer from using the discriminatory process in future personnel actions.
Justice Alito explained that holding the federal government to a higher standard than private employers, state and local governments was not unusual. When the ADEA was first enacted in 1967, the prohibition against age discrimination applied only to private employers. Congress, in 1974, then expanded the scope of the ADEA to include federal, state, and local governments. For state and local governments, Congress simply added them to the definition of “employer” in the ADEA’s private-sector provision. For the federal government, Congress deliberately chose to enact a separate provision, with the specific directive that personnel actions taken by the federal government “shall be made free from any discrimination based on age.”
In summary, federal employers may be liable for discrimination if age was considered in any part of a personnel action, even if age discrimination was not the but-for cause of the final personnel action.
For more information on age discrimination in the workplace, contact us online or call us at 415-788-9000.
*The contents of this article are for informational purposes only and does not constitute legal advice or tax advice. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Readers should contact a tax professional for advice on taxation issues. Information on this website may not constitute the most up-to-date legal or other information. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.
Minami Tamaki LLP is investigating claims that U.S. and foreign airlines have refused to provide required refunds after canceling or significantly delaying flights because of the coronavirus (COVID-19) public health emergency.
On April 3, 2020, the U.S. Department of Transportation (“DOT”) issued an Enforcement Notice stating that airlines remain obligated to provide prompt refunds to passengers for flights to, within, or from the United States when the carrier cancels a flight or makes a “significant schedule change” and the passenger chooses not to accept the alternative offered by the airline.
The Enforcement Notice noted that the DOT is receiving an increasing number of complaints from consumers alleging that airlines cancelled or significantly delayed flights and then failed to provide refunds. Consumers have reported that airlines have instead offered travel vouchers or credits for future travel. However, as the DOT noted, vouchers and credits may not be readily usable given the dramatic reduction in travel schedules due to COVID-19.
Airlines have a longstanding obligation to provide refunds to ticketed passengers upon canceling a flight or making significant changes to a flight schedule when a passenger declines alternatives such as a voucher. See Enhancing Airline Passenger Protections, 76 Fed. Reg. 23110-01 at 23129.
The Enforcement Notice states that it continues to view any policy or contract of carriage provision that purports to deny refunds to passengers as a violation that could subject an airline to an enforcement action.
The DOT stated that, in light of the ongoing COVID-19 pandemic, its Aviation Enforcement Office will provide airlines an opportunity to become compliant before pursuing an enforcement action provided that the airlines 1) contact passengers provided credit or vouchers to notify them that they have the option of a refund; 2) update their refund policies and contract of carriage provisions to make clear that they provide refunds; and 3) review with their personnel the circumstances under which refunds should be made.
If you were denied a refund after cancellation or a significant schedule change of air travel due to COVID-19 and would like more information, you may contact us online or call us at 415-788-9000.
The Coronavirus Aid, Relief and Economic Security (CARES) Act signed into law on Friday, March 27, will provide much-needed assistance to a country struggling with the impact of the coronavirus (COVID-19) pandemic. The $2 trillion economic relief plan has numerous provisions aimed at helping U.S. workers, small businesses, and industries. The following information summarizes some key provisions of the bill; employees and employers should contact their attorney or one of our employment attorneys at Minami Tamaki for specific legal advice.
Individuals who earn $75,000 in adjusted gross
income or less will receive direct payments of $1,200. Married couples
earning up to $150,000 will receive $2,400.
For every qualifying child age 16 or younger, the payment will be an
Stimulus payments phase out for earners above the
income thresholds until stopping altogether for single people earning $99,000
or married people with no children earning $198,000.
Eligibility for stimulus payments is based on
2019 income. For individuals who have not prepared a 2019 tax return yet,
their 2018 income amounts will apply.
The stimulus package will increase the amount of unemployment
benefits that many individuals can receive, extend the length of time that
benefits can be received, and include many workers not previously eligible for
The exact amount of unemployment benefits that
workers will receive differs by state, but benefits will be expanded in an
attempt to replace workers’ paychecks. Individuals will be able to
receive an extra $600 per week for up to four months on top of state
The stimulus package also provides eligible
workers with an additional 13 weeks of unemployment insurance on top of what
they would normally be able to receive in their state. The maximum
benefit period in California is typically 26 weeks, so Californians will now be
able to receive up to 39 weeks of unemployment benefits.
Self-employed workers, independent contractors,
freelancers and gig economy workers who have lost work due to the coronavirus
pandemic are eligible for unemployment insurance under the CARES Act.
These individuals who do not regularly qualify for unemployment insurance will
be able to receive 50% of the average unemployment benefit in their state, plus
the $600 per week payments.
Small Business Paycheck Protection Program
Businesses with fewer than 500 employees
(including non-profit organizations) will have access to loans backed by the
Small Business Administration. These loans are eligible for forgiveness
if used for covering payroll, rent, utilities, and other qualifying expenses in
order to maintain operations during the coronavirus pandemic. Accrued
interest is required to be repaid.
Small businesses can receive loans of up to $10
million with interest rates capped at 4%. The bill provides for an
expedited origination process with local lenders determining eligibility and
Small Business Economic Injury Disaster Loans
The CARES Act provides additional funding to
expand the Small Business Administration’s Disaster Loan Program.
Businesses with fewer than 500 employees may apply for loans of up to $2
million to cover expenditures necessary to alleviate economic injury caused by
the coronavirus pandemic.
Disaster Loan Program applicants can also seek an
emergency grant of $10,000. Notably, businesses are not required to repay
the $10,000 even if their underlying application is later denied.
The CARES Act also includes provisions regarding
tax credits to provide relief to employers whose operations have been impacted
by the coronavirus pandemic, and to incentivize employers to keep workers on
staff. Employers should consult with their tax advisors regarding these
provisions of the bill.
For more information on employee benefits and
business solutions related to the coronavirus, contact us online or call us at 415-788-9000.
*The contents of this article are for informational
purposes only and does not constitute legal advice or tax advice. Readers
should contact a licensed California attorney to obtain advice with respect to
any particular legal matter. Readers should contact a tax professional for
advice on taxation issues. Information on this website may not constitute
the most up-to-date legal or other information.
Use of this website does not create an attorney-client relationship
between the reader and Minami Tamaki LLP.
As the novel coronavirus (COVID-19) continues to spread, California Governor
Gavin Newsom recently issued a state-wide shelter-in-place order directing
all individuals to stay home, except to provide or obtain essential services or
to perform other authorized necessary activities. Due to that order, many businesses that do
not provide “essential” services are suspending operations, which is impacting
jobs and workers. Public health departments are also urging
for people to practice “social distancing” and for high-risk populations (those
65 years old or older, or with certain health conditions or weakened immune
systems) to stay home and take extra precautions. In these uncertain times, employees may be
considering their options and rights if they are unable to work.
The following information provides an overview of leaves that may be
available for workers who need to care for themselves or their families due to
COVID-19, and possible wage replacement benefits for workers who are completely
or partially out of work during this time.
This information is only meant to be a summary, and workers should
contact an attorney to obtain more details or advice on specific legal matters.
Sick Leave and Family Leave
The federal Families First Coronavirus Response Act (“Families First
Act”), recently passed by Congress and effective starting April 2,
2020, covers employers with up to 500 employees and provides emergency paid
sick leave and family leave. Under the
Act, an employee is entitled to up to two weeks of paid sick leave if
the employee: (1) is subject to a federal, state, or local quarantine or
isolation order related to COVID-19; (2) has been advised by a health care
provider to self-quarantine due to concerns related to COVID-19; (3) is
experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) is
caring for an individual who is subject to a quarantine order or who has been
advised to self-quarantine; (5) is caring for a child, if the child’s school or
place of care is closed or unavailable due to COVID-19 precautions; or (6) is
experiencing any other substantially similar condition specified by the
Secretary of Health and Human Services in consultation with the Secretary of
the Treasury and the Secretary of Labor.
If the employee is taking emergency paid sick leave to care for oneself,
they will be paid their full regular rate of pay, up to $511 per day and $5,110
in total. If the employee is taking sick
leave to care for others or for other qualifying reasons, they will be paid
two-thirds of their regular rate of pay, up to $200 per day and $2,000 in
Under the Act, employees can also take up to twelve weeks of paid
family leave, if they have worked for the employer for at least 30 calendar
days, and if they are unable to work or telework due to a need to care for their
child, if the child’s school or place of care is closed or unavailable due to a
public health emergency. When an
employee takes this family leave, the first 10 days may be unpaid. The employee may elect to substitute any
accrued vacation leave or personal leave, medical or sick leave for unpaid
leave during the initial 10 days. After
10 days, the employee will be paid two-thirds of their regular rate of pay, up
to $200 per day and $10,000 in total.
Besides the Families First Act, there are other state and federal laws
that may provide leave protections to employees. The federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) require employers to provide up
to twelve weeks of unpaid, job-protected leave each year for a serious
health condition of the employee or their family member. While such leave is unpaid, the employer must
continue maintaining the employee’s coverage under group health benefit plans. The FMLA
and CFRA covers employers with at
least 50 employees within a 75-mile radius, and employees who have worked for
at least one year total for the employer and at least 1,250 hours in the last
calendar year before the start of their leave. Because the Families First Act
actually amends the FMLA to include COVID-19 as an additional qualifying reason
for leave and provides this emergency paid sick leave benefit, the Families
First Act leave does not provide an additional twelve weeks of leave on top of
the twelve weeks under the FMLA.
If an employee is unable to work due to having or being exposed to
COVID-19, and they have supporting medical documentation, they can file a State Disability Insurance(SDI) claim. SDI provides short-term benefits payments to
workers who have a full or partial loss of wages due to a non-work-related
illness or injury. The benefit amounts cover
approximately 60 to 70 percent of an employee’s wages (depending on income), up
to a maximum of $1,300 per week for up to 52 weeks.
Employees who are unable to work because they are caring for a sick or
quarantined family member due to COVID-19 can file a claim for Paid Family Leave(PFL). Again, supporting
medical documentation is required. PFL
provides up to six weeks of benefits payments at the SDI rate to employees who
have a full or partial loss of wages due to time off work to care for a
seriously ill family member. Starting
July 1, 2020, PFL will provide up to eight weeks of benefits payments to
For employees who lose their jobs or have their hours reduced due to
COVID-19, they may be able to file for Unemployment
Insurance (UI). Eligible workers can
receive benefits of up to a maximum of $450 per week, for potentially at least
13 to 26 weeks depending on their claim’s maximum award and weekly benefits
paid. Employees who miss work due to
their child’s school shutting down may be eligible for UI benefits, and those
applications are being considered by the EDD on a case-by-case basis.
By the Governor’s executive order, the usual one-week waiting period
for SDI and UI benefits has been waived, so eligible workers can receive their
For more information on worker protections and rights during the COVID-19 situation and the shelter-in-place orders, please contact us online or call us at 415-788-9000.
*The contents of this article are
for informational purposes only and do not constitute legal advice. Employers and employees should contact a
licensed California attorney to obtain advice with respect to any particular
legal matter. Information on this website may not constitute the most
up-to-date legal or other information.
Use of this website does not create an attorney-client relationship
between the reader and Minami Tamaki LLP.
Any links contained in this article are only for the convenience of the
reader, and do not constitute recommendations or endorsements of the contents
of the third-party sites.
On March 19, 2020, California Governor Gavin Newsom ordered all individuals in the state to stay at home in order to slow the spread of coronavirus (COVID-19). The order contains exceptions for essential needs, including work in critical infrastructure sectors.
Governor Newsom’s California order comes on the heels of “shelter-in-place” orders issued by seven Bay Area counties – Alameda, Contra Costa, Marin, Santa Clara, San Francisco, San Mateo, and Santa Cruz – just days earlier.
California and Bay Area orders have led to many questions for employers in the
state. The following information summarizes employer obligations in light
of the coronavirus pandemic. Employers and employees should contact an
attorney for further details and to obtain advice on specific legal
Can California employers have employees
work remotely from home during government mandated shutdowns?
Generally yes, but California employers should make sure to
reimburse employees for all necessary business expenses incurred as a result of
working remotely. If working from home requires the use of equipment
(such as computers or printers) that the employee does not already own, the
employer must provide the equipment or reimburse the employee for the cost of
the equipment. Employers must also reimburse employees for internet and
phone costs incurred for business purposes.
California employers should also continue to ensure compliance
with regular wage and hour requirements. This includes, but is not
limited to, meal periods, rest periods, and overtime requirements for
If government mandated
shutdowns cause financial hardship for an employer, can the employer reduce
employee hours or change other terms of employment?
Employment in California is presumed to be “at-will” unless the
parties agree otherwise or an exception to at-will employment applies.
This means that either the employee or the employer may terminate employment
with or without cause or prior notice.
An employer may also change other terms and conditions of employment,
such as hours worked and compensation rates. Employers must pay at least
the applicable minimum wage for all hours worked.
Employers planning a closure or major layoffs as a result of
coronavirus can obtain help from the California EDD Rapid Response
program. Rapid Response teams may help avert potential layoffs and
provide immediate on-site services to assist employees facing job losses.
An employer reducing hours or shutting down operations due to
coronavirus can encourage employees to file an unemployment insurance
claim. Unemployment insurance provides partial wage replacement to
workers who lose their jobs or have their hours reduced through no fault of
Do employers have to provide paid leave
to employees during the coronavirus pandemic?
federal Families First Coronavirus Response Act, employers with up to 499
employees must provide workers with two weeks of paid sick leave during the
coronavirus pandemic. After this two-week period, employees who have been
employed for at least 30 days will be able to take up to 12 weeks of leave
under the Family and Medical Leave Act to care for a child whose school or
place of care has been closed. After the first ten days, employees will
be able to receive two-thirds of their usual pay, up to $200 per day and
$10,000 in the aggregate. The Act is scheduled to take effect on
April 2, 2020.
may receive paid sick leave under the Families First Coronavirus Response Act
if they are unable to work because 1) the employee is subject to a federal,
state, or local quarantine or isolation due to coronavirus; 2) a health care provider
has advised the employee to self-quarantine due to concerns related to
coronavirus; 3) the employee is experiencing symptoms of coronavirus and
seeking a medical diagnosis; 4) the employee is caring for an individual who is
subject to quarantine or isolation due to coronavirus, or advised to
self-quarantine due to coronavirus; 5) the employee is caring for the
employee’s child whose school has been closed or place of care if unavailable
due to coronavirus precautions, or 6) the employee is experiencing any other
substantially similar condition specified by the Secretary of Health and Human
Services in consultation with the Secretaries of Treasury and Labor.
Act, employers will be able to seek reimbursement of paid leave amounts through
a refundable tax credit. Employers with fewer than 50 employees may also
seek an exemption from the requirements of the Act.
This is a
brief summary of the Families First Coronavirus Response Act. For full
details of the Act, employers and employees should consult with an
Are employers otherwise required to pay employees who
cannot work during government mandated shutdowns?
Generally, there is no
legal obligation to pay employees if the employer’s business is shut down due
to the coronavirus pandemic. However, employers are required to provide
paid leave to some employees in specific instances and should consult an
attorney for specific advice regarding their legal obligations.
Further, exempt employees
must be paid their full weekly salary if they perform any work during the
Employers may also
generally permit non-exempt employees to take accrued vacation or paid time off
during government mandated shutdowns.
What notice are California employers
required to provide if they must shut down as a result of the coronavirus
17, 2020, Governor Newsom signed Executive Order N-31-20, which temporarily
suspends Cal-WARN advance notice requirements for mass layoffs, relocation, or
termination caused by coronavirus related business circumstances that were not
reasonably foreseeable as of the time that notice would have been
Cal-WARN Act normally requires employers to provide 60 days advance notice of
mass layoffs, relocation, or termination to all affected employees. Under
the Order, an employer must only give as much notice as is practicable and
provide a brief statement of the basis for reducing the notice
be noted that the federal WARN Act, which sets out similar requirements for a
60-daynotice in the case of a closure or layoff, already contains exceptions
for closures or layoffs resulting from business circumstances that were not
information on employer obligations related to the coronavirus and government
mandated shutdowns, contact us online or call
us at 415-788-9000.
*The contents of this article are for informational
purposes only and does not constitute legal advice. Employers and
employees should contact a licensed California attorney to obtain advice with
respect to any particular legal matter. Information on this website may not
constitute the most up-to-date legal or other information. Use of this
website does not create an attorney-client relationship between the reader and
Minami Tamaki LLP. Any links contained
in this article are only for the convenience of the reader, and do not
constitute recommendations or endorsements of the contents of the third-party
Congressman Ted Lieu of California’s 33rd Congressional District authored an op-ed published by The Washington Post on March 18, 2020.
Related: The Asian Pacific Policy and Planning Council (A3PCON) and Chinese for Affirmative Action (CAA) have launched the Stop AAPI Hate Reporting Center in response to spreading xenophobia as a result of the COVID-19 pandemic. If you have experienced harassment and/or discrimination, visit a3pcon.org/stopaapihate to file a confidential report.
I genuinely want President Trump to succeed in stopping the spread of the novel coronavirus, and will do everything I can to help him in this effort. At stake are the lives of my elderly parents, my family, my constituents and many Americans. But Trump’s repeated insistence on calling coronavirus the “Chinese virus” is more than just xenophobic; it causes harm both to Asian Americans and to the White House’s response to this life-threatening pandemic. I served on active duty in the U.S. military to defend the right of any American to make politically incorrect statements, but as a public figure, I cannot stand idly by while the president uses his pulpit to exacerbate xenophobia in a time of crisis.
Trump claims that in using the phrase “Chinese virus,” he’s just trying to be “accurate” in describing where it’s from. But there is a difference between saying the virus is from China and saying it is a Chinese virus. In a time of unease and uncertainty, such language stokes xenophobic panic and doesn’t get us closer to eradicating this virus. Asian Americans have been assaulted or otherwise discriminated against because of such rhetoric. In New York, a man assaulted an Asian woman wearing a face mask and called her a “diseased b—h.” Also in New York, a man on the subway sprayed an Asian passenger with Febreze and verbally abused him. On the subway in Los Angeles, a man ranted at an Asian American woman, claiming Chinese people are putrid and responsible for all diseases. (The woman happened to be Thai American.)
Trump’s rhetoric adds fuel to the growing fire of hatred being misdirected at Asian Americans. The fact that he is the president of the United States, who is responsible for the well-being of all Americans, only makes his rhetoric even more disturbing. The leaders of both the Centers for Disease Control and Prevention and the World Health Organization have warned that we should not use terms such as “Chinese virus.” The novel coronavirus already has an official name, SARS-CoV-2, and an unofficial name, covid-19. Injecting an ethnic qualifier to the virus is unnecessary and can stigmatize Asian Americans.
Against the backdrop of Trump’s unnecessary language lies the history of discrimination against Asian Americans in our country. From the Chinese Exclusion Act to the internment camps of World War II to the murder of Vincent Chin, Asian Americans are particularly susceptible to being discriminated against by the mistaken belief that we somehow are foreigners or have foreign ties.
Minami Tamaki is investigating allegations that Evenflo engaged in fraud and deceptive marketing in the sale of its Big Kid Booster seats.
According to a February 2020 investigation by ProPublica, Evenflo advertised its Big Kid booster seats as “side impact tested” without revealing that its own tests showed that a child in its seats would likely be seriously injured in a side-impact car crash.
According to the Evenflo test videos obtained by ProPublica, the child-sized crash test dummies in Big Kid booster seats were thrown out of their shoulder belts when subjected to a simulated “T-bone” collision. Evenflo’s engineer admitted that real children thrown in the same manner could suffer catastrophic injury to their head, neck, and spine, if not death.
The ProPublica investigation states that Evenflo has known since at least 2008 that its Big Kid Booster car seats were potentially unsafe for children under forty pounds and under four years of age. Despite this knowledge, Evenflo marketed the Big Kid Booster car seats as safe for children as light as 30 pounds.
Recent reports about the dangers of Big Kid Booster car seats are particularly concerning because Evenflo heavily advertised its safety standards, and parents have alleged that they made purchasing decisions based on these representations.
If you purchased an Everflo Big Kid Booster car seat and would like more information about your legal rights, you may contact us online or call us at 415-788-9000 to set up a free consultation.
Minami Tamaki LLP congratulates Partner Donald K. Tamaki on being honored with an ABA Spirit of Excellence Award for 2020. The award was presented at the 2020 ABA Midyear Meeting in Austin, Texas, on February 15, 2020.
The award celebrates the efforts and accomplishments of lawyers who work to promote a more racially and ethnically diverse legal profession. Awardees excel in their professional settings; personify excellence on the national, state or local level; and demonstrate a commitment to racial and ethnic diversity in law.
“There are a lot of people who agree that diversifying the profession is important, but it’s sometimes put on the back burner,” said Helen Kim, chair of the ABA Commission on Racial and Ethnic Diversity, to the ABA Journal. “What the Spirit of Excellence Awards do is focus on its importance by highlighting and showcasing those who are promoting diversity and inclusion in the profession. It also inspires the people in the audience to join in the cause.”
Don served on the legal team that reopened the 1944 U.S. Supreme Court case of Fred Korematsu, overturning his criminal conviction for defying the removal and unjust incarceration of almost 120,000 Japanese Americans. He was also on the team that filed an amicus brief in Trump v. Hawaii on behalf of Korematsu’s daughter and the children of Gordon Hirabayashi and Minoru Yasui, two other Japanese American plaintiffs in Supreme Court cases challenging curfews.
“My father once told me when he was a kid he wanted to be a lawyer, but it was impossible,” said Don. “To this day, I keep his [college] diploma. It is wrapped in a mailing tube that was addressed to a concentration camp. The fact that now I’m getting recognized, it’s important to me, I’m honored, but it’s important for the entire public to remember how far we’ve come.”
Donald K. Tamaki Remarks as Prepared for Delivery
Thank you ABA, its Commission on Racial and Ethnic Diversity, its chair Helen Kim, the NAPABA Awards Committee, NAPABA’s President, Bonnie Lee Wolf, and past President Daniel Sakaguchi.
Thank you to my lovely wife, Suzanne Ah-Tye, whose formidable persona keeps me in line, and who blessed me with twin sons, Blake and Philip, here today with their spouse and fiancée, respectively, Michelle Tamaki and Annie Wang.
Finally, I want to lift up my law partners, Mark Fong and Olivia Lee, and in particular, Dale Minami—the 2019 awardee of the ABA Medal—who, to my delight, I am occasionally mistaken for, since we all look alike. And when I’m congratulated for Dale’s achievements by people thinking I am him, I simply say, humbly, “Thank you, but I owe it all to Don Tamaki.”
My parents have passed, along with most of the 120,000 Japanese Americans who were incarcerated in 1942, so allow me to be their voice.
When FDR issued the Executive Order—authorizing Lt. General John L. Dewitt to do the mass removal—my father was about to graduate from UC Berkeley. But because he had been taken away, Berkeley scrolled up his diploma in a mailing tube, and addressed it to him at “Tanforan Assembly Center, Barrack 80, Apt 5, San Bruno.”
Do you know what “Barrack 80, Apt 5” was? It was a horse stall. The government surrounded race tracks on the West Coast with barbed wire and machine gun towers and forced these Americans at gunpoint out of their homes while 10 more permanent detention camps were being built from California to Arkansas.
Metaphorically speaking for my father: This diploma was the promise of America. But the mailing tube, encircling and constraining that promise addressed to a horse stall reeking of manure, was his reality. I keep this memento because it reminds me of how far we’ve come.
My parents rarely talked about their bitter experience. Until one day in 1982, I showed them secret, intelligence reports from the Navy, the FBI, and the FCC admitting that Japanese Americans had done no wrong. Moreover, Justice Department memos revealed a scandal of epic proportions. DOJ lawyers urged their superiors that they had an ethical duty to disclose these official reports and not to lie or mislead the Supreme Court. They were rebuffed by the Solicitor General, the Assistant Attorney General, and War Department officials who suppressed, fabricated, and destroyed evidence.
For my parents this was a jaw-dropping mind-blowing revelation. They of course, knew that they were innocent, but had thought that their confinement was the result of wartime hysteria. They could hardly fathom that the government’s own files revealed that what might have started as hysteria ended at the highest echelons of our legal system as a calculated plan to manipulate the outcome of the Korematsu decision even if it meant lying to the Supreme Court.
THE SUPREME COURT CASES
Colonel Karl Bendetsen, a Stanford law graduate who should have known something about the Constitution, worked under General Dewitt to design the mass removal. He penned the following statement for DeWitt:
“The Japanese race is an enemy race… The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.”
Wrap your head around that logic: the very fact that you’ve never committed a crime “is a disturbing and confirming indication” that you will commit a crime?
In other words, our people lost their freedom, their property, and ,for some, even their lives based on conspiracy theories and fake news. This was a time when “alternative facts” held sway over the real ones.
Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui, defied DeWitt’s orders, and were tried and convicted. They appealed.
Because not a single Japanese American was ever tried and convicted of espionage. The burden fell on General DeWitt to issue a “Final Report” to prove that what he did was reasonable. There was only one problem, it was entirely made up and the government knew it at the time.
In 1944, in Korematsu, Solicitor General Charles Fahy exhorted the Court not to second-guess the judgment of the military that locking up these Americans was necessary for the nation’s safety. Instead of asking questions, the Court deferred, thereby abdicating its constitutional role as a check and balance on the Executive Branch. In a 6-3 decision, Justice Black wrote that this was not a case of racial hostility, but a case of “military necessity.” How did the Court know that the round-up was necessary? Its reasoning was sheepish, “because the military said so”.
THE REOPENING AND CORAM NOBIS
37 years later, Professor Peter Irons, found DOJ records that had been misfiled in the Commerce Department and forgotten. With researcher Aiko Yoshinaga Herzig, they uncovered whistle-blower memos written by Edward Ennis, the official supervising the drafting of the government’s brief. When Ennis began searching for the evidence that Japanese Americans had committed espionage, to his alarm he found the opposite, that there was no evidence.
Naval Intelligence, the lead agency for West Coast security, concluded that Japanese Americans posed no threat and recommended against the round-up. Ennis wrote to Solicitor General Fahy:
“I think we should consider very carefully whether we have a duty to advise the Court of the …[the Navy’s] report… any other course of conduct might approximate the suppression of evidence.”
The FCC found that DeWitt mischaracterized radio signals coming from Tokyo as shore-to-ship transmissions. FBI Director Hoover confirmed:
“[e]very complaint has been thoroughly investigated…in no case had there been any evidence of illicit signaling.”
DOJ lawyer John Burling wrote to Assistant Attorney General Herbert Wechsler:
“…There is no doubt that [DeWitt’s]…statements are intentional falsehoods.”
Ennis wrote to Wechsler:
“[We have] an ethical obligation to…refrain from citing…DeWitt’s claims…if the [DOJ] knows that [they are] …are untrue…The…tenor of [Final] report is…that …overt acts of treason were being committed. Since this is not so, it is highly unfair to this racial minority that these lies…go uncorrected…”
In the end, the evidence was suppressed. The Solicitor General stood behind the Final Report even though every intelligence agency had debunked its claims. On this basis that a fraud on the high Court had been committed, our team of pro bono lawyers was able to have Fred Korematsu’s criminal conviction thrown out.
PARALLELS OF KOREMATSU TO THE TRAVEL BAN
The Court’s “rubber stamp” approach opened the door for this massive fraud to occur. Simply put, if the courts look the other way when the President invokes “national security,” the temptation for leaders to twist the facts, to engage in fabrications to achieve a political end, is likely to be irresistible. The founders of this nation understood this so they established a system of checks and balances to thwart the rise of kings and tyrants.
In 2017, the President banned travel from Muslim-majority nations, separating families and stranding U.S. residents abroad. Thousands of validly issued visas were canceled. Hundreds with such visas were prevented from boarding planes or denied entry on arrival—including Iraqi translators who risked their lives serving the US military.
The government claimed that an undisclosed Homeland Security Report showed that the ban was necessary for national security, and therefore, the Court should bow to the will of the President to impose, in Justice Sonia Sotomayor’s words, “an exclusionary policy of sweeping proportion.”
Opponents argued that the Travel Ban was not about security, but was the bigoted “Muslim Ban” that Trump had promised on the campaign trail.
In 2018, in a 5-4 decision, the Court upheld the Ban. Chief Justice John Roberts declared: “Korematsu was gravely wrong the day it was decided…”
But in the same breath, Roberts concluded that Korematsu has nothing to do with the Travel Ban held that the Court would not second-guess the judgment of the Executive in matters of security, and that Trump’s anti-Muslim vitriol didn’t matter.
As Harvard Law Professor Noah Feldman observed that’s more or less what the Court did in Korematsu. There, Justice Black denied that the orders requiring the forced removal were based on racial prejudice. The dissenters pointed out that this was preposterous.
To quote Peter Irons, the parallels between Korematsu and the Travel Ban are disturbing. Both arose out of war, both featured the government invoking “national security” to shield its actions from judicial scrutiny, both had abundant evidence of prejudice expressed by high officials against a targeted minority, both involved hidden intelligence reports, and both ended with the Court failing to question whether such sweeping deprivations of fundamental freedoms were necessary for the nation’s safety or were merely the fulfillment of bigoted campaign promises.
WHERE DO WE GO FROM HERE?
Friends—the lesson of Korematsu is that democracy is not necessarily lost in a sudden coup d’etat.
No, we can lose our freedom incrementally:
When the Congress, the Judiciary, and the Executive no longer serve as a check and balance to curb the abuse of power;
When the free press is attacked as “the enemy of the people;”
When the judiciary is disparaged as “so-called judges;”
When dissenters and whistleblowers are shouted down and retaliated against; and
When “alternative facts” are trotted out in place of the real ones.
No, a democracy is not always lost by overthrow if they are no checks and balances.
And if we fail to stand up and demand accountability to the Rule of Law, our democratic institutions can end up hollowed out from within to the point that we will no longer be able to recognize them.
In my travels with Fred Korematsu he always closed by saying:
“Don’t be afraid to speak up.”
So let’s not be afraid to speak up.
Let’s speak up. Our voices are more important now than ever.