In a case that is a companion case to my Federal civil rights case, Anilao v. Spota, Judge Nina Gershon, a United States District Court Judge for the Eastern District of NY has issued a 48 page decision, ruling that the owners of the Sentosa group of nursing homes violated the US anti-human-trafficking laws by using threats of serious harm against more than 200 nurses from the Philippines.
Judge Gershon also found that the nursing homes’ owners Benjamin Landa and Bent Philipson (as well as Berish Rubenstein and Francris Luyun owners of Sentosa-related employment agency and recruitment agency, respectively), are personally liable for violations of the Trafficking Victims Protection Act . The court also awarded legal fees and set a November 4th conference date to decide when the damages portion of the case will go forward.
The lawsuit was brought by nurse Rose Ann Paguirigan in March 2017 on behalf of more than 200 nurses who were recruited in the Philippines to work at Sentosa nursing homes in New York. Paguirigan presented evidence that the Filipino nurses were not paid the prevailing wages promised in their employment contracts and that they were required to work in unsafe conditions with inadequate staffing. She also presented evidence that the nursing homes and their recruiters used threats of serious harm to keep the nurses from leaving.
In our case, we claim Sentosa owners and their lawyers encouraged, demanded and convinced then-Suffolk DA Tom Spota (now under indictment) to arrest 10 Filipino nurses who resigned over harsh working conditions. We say they also got Spota to criminally charge the nurses’ attorney, Felix Vinluan, for conspiracy.
We were able to get the Appellate Division to stop the criminal prosecution by filing a rare Writ of Prohibition, arguing that the prosecution of these eleven people violated the US Constitution’s prohibition against slavery and involuntary servitude found in the 13th Amendment and also violated their right to free speech and free assembly under the First Amendment.
Much of the work we did in our case also helped the class action plaintiffs and Judge Gershon repeatedly cites Anilao in her decision. For example, we established that a liquidated damages paragraph in the nurse’s contract which required them to pay $25,000 if they did not complete 3 years of employment with Sentosa was illegal as it constituted a penalty and had no connection to any actual damages Sentosa would suffer if the nurses did not fulfill the three year commitment. Moreover, we also established that the nurses rarely ever worked for their contracting employer because Sentosa would fraudulently tell the Philippine government that the nurses were contracted as “Direct Hire” nurses for one specific Sentosa-owned nursing home only to immediately shift them to various other nursing homes by making them work as agency nurses under Prompt Employment Agency, the recruitment agency owned by Berish Rubenstein, Phillipson’s son-in- law.
When the nurses reached out to the Philippine consulate in NY for help over the “bait and switch” the Consul General asked Philippine-American lawyer Felix Vinluan to represent the nurses on a pro bono basis. He filed complaints in the the Philippines, alleging immigration fraud causing Sentosa’s recruitment license to be temporarily suspended. Sentosa, a powerful and politically connected healthcare giant, then reached out to Long Island attorney Howard Fensterman of Abrams, Fensterman, to have Sen. Chuck Schumer intervene on Sentosa’s behalf. Sen. Schumer sent a series of letters to ever-increasing levels of Philippine government, culminating with a letter directly to then-Philippine President Gloria Macapagal-Arroyo asking her to review the situation and meet with Fensterman and Sentosa principals. Shortly after this letter was sent, the investigation into Sentosa recruitment was shut down.
Then, even though the State Department of Health, the State Education Department (which oversees nurse licensing), and the Suffolk County Police Department found no evidence of wrongdoing, Fensterman arranged a meeting with DA Spota which resulted in his office bringing the criminal charges against the nurses and Mr. Vinluan; the charges were eventually prohibited and dismissed by the Appellate court.
Kudos and congratulations to James Howell, the lawyer who handled he case before Judge Gershon on behalf of the class. And kudos to my client Felix Vinluan who championed these nurses’ rights at the request of the Philippine consulate. He was arrested and prosecuted for his efforts and I hope this decision vindicates his efforts.
You can find Judge Gershon’s decision decision here https://law.justia.com/cases/federal/district-courts/new-york/nyedce/1:2017cv01302/398344/95/
Read more about the human trafficking case here at https://www.philstar.com/headlines/2019/10/01/1956407/200-filipino-nurses-nyc-win-human-trafficking-suit?fbclid=IwAR2fZSjku10DXlEa5OCFCw5FmYp6bMCSth0W_mS_8QrCou8wK1Q-XSf6Mc0
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