Certified Legal Translation Services Can Protect Rights
Missing, Erroneous, or Uncertified Translations Can Jeopardize a Case
Certified legal document translation services accompanied by a properly attested Affidavit of Translation and by a properly attested certified English translation of foreign language documentary evidence play an important role in the practice of law. Today we will look at three different cases that deal with missing errorenous, or uncertified translations- not always fatal to a case, but certainly best avoided.
Case #1: A business dispute over the sale of French apartments
Our first case is Anrion Corp. v. Ivanova, a business dispute between longstanding business partners Mann (Plaintiff) and Ivanova (Defendant). The two of them co-founded an investment company based in France, in 1996 and bought two apartment units in the country. Throughout their partnership, Mann provided Ivanova with financial aid and employment through his construction company. Conversely, Ivanova loaned Mann $2.3 million, a debt acknowledged by a Promissory Note signed in 2012. The loan was later amended by an Agreement in 2018, which granted Ivanova the authority to sell the French properties to reduce Mann’s outstanding debt.
However, Mann disputes the validity of the Agreement, claiming he had no participation in its drafting, doesn’t recall signing it, and the dates regarding the signing are inconsistent with his travel records. He also states he over-relied on Ivanova without properly tracking payments and liabilities of the partnership. Despite this dispute, Ivanova sold the French properties in 2019 and 2022, allegedly without Mann’s consent, and reportedly deposited the sale proceeds in her personal account. Mann sued in Massachusetts state court, and shortly thereafter filed a motion for summary judgment.
French law may apply to the case, but Massachusetts Federal Court doesn’t speak French
Regarding the sales of the two French properties, Ivanova argues that French law governs while Mann contends that Massachusetts law applies. The court agreed with Ivanova, citing that Massachusetts has long held that the law of the place where real property is located governs.
But knowing which law applies and knowing what the law says are two different things. Ivanova needed to do more than merely direct the court’s attention to the law of another country. The court pointed out that “The party seeking to rely on foreign law must provide clear proof of the relevant legal principles to the trial court.”
Defendant got some extra time to do her homework and correct the error
Despite the fact that Ivanova tried to invoke French law, she had not presented a certified English translation of the relevant provisions of French code with an explanation of how she believed it should be applied. Nor did she produce an expert to do so. Despite this significant error, the court denied Mann’s motion and gave her 30 days to provide a certified translation of the relevant French legal provisions. Ivanova was fortunate to survive the motion for summary judgment despite making such a clear error.
Case #2—Class action claim for lost wages and a missing translation certification
Our next case is Morales v. Next Stop 2006, Inc, a claim brought by twenty former employees of Next Stop, who worked in various roles such as drivers, installers, construction workers, and helpers. The Plaintiffs sued Next Stop for violations of the Fair Labor Standards Act, New York Labor Law and New York City Human Rights Law, claiming that they were paid less than New York’s minimum wage, they were not paid for overtime hours, and they experienced racial discrimination.
Defendants filed a motion to dismiss the case for failure to state a claim. In opposing the motion to dismiss, several Plaintiffs filed declarations outlining the factual circumstances of their relationship with Defendant (days and hours worked, etc.). However, some of the Plaintiffs didn’t comply with New York law on declarations by parties with limited English proficiency. Specifically, Defendants argued that Plaintiff Vargas’ declaration should not be considered because he is a Spanish-speaker, and the declaration was not accompanied by a “Certificate of Translation . . . signed by such interpreter under oath before a Notary Public swearing that the interpreter is fluent in both Spanish and English . . . .”
In general, as we have talked about before, the rules on English language declarations typically require that “[i]f the declarant himself does not speak and read English . . . the party relying on his English-language declaration must also submit documents sufficient to establish that he understood what he was signing.” In most cases, courts require that a declarant who does not speak English submit a declaration in his or her native language, in addition to the English version, or for the declarant to sign a separate declaration swearing that the declaration was translated for him or her.
The Uncertified translation was included in the record anyway
In this case, Plaintiff Vargas’ affidavit stated (in Spanish) that the “affidavit was prepared with the assistance of a Spanish interpreter and I approve the submission of this English translation for the convenience of the court, as accurate.”
But the Court pointed out that the declaration was improper because it didn’t disclose who translated the declaration to Plaintiff or that person’s level of skill in Spanish or English. However, because the court reached a decision on other grounds (transferring the case to New Jersey rather than dismissing it), it did not strike the affidavit from the record. Vargas would get a chance to correct the error.
Case #3: More lost wages, and an alleged “sham” affidavit
The case involves a former employee (“Plaintiff”) who had worked as a delivery driver and kitchen worker at Bai Wei Asian Cuisine (“Defendant”) from 2017 to 2019. The following year, Plaintiff brought a federal wage case under the Fair Labor Standards Act (FLSA), claiming that he and other employees were paid less than minimum wage, with no overtime. He sought to recover unpaid wages and liquidated damages. But rather than just bringing the case in his own name, Plaintiff filed a motion for conditional certification of an FLSA collective. A collective action is a type of lawsuit in which a group of employees who are similarly situated with respect to their claims against their employer can join together to pursue their claims in a single lawsuit.
Courts use a two-step process to determine whether to certify an FLSA collective action. At the first step, the plaintiff must make a “modest factual showing” that he or she and other potential plaintiffs are similarly situated with respect to their claims that they were not paid minimum wage or overtime pay. If the plaintiff meets this burden, the court will conditionally certify the collective and authorize notice to be sent to potential plaintiffs informing them of the lawsuit and their right to opt-in.
In support of Plaintiff’s claim that he and other employees were “similarly situated”, he provided his own affidavit (translated from Mandarin), asserting that he and other employees regularly worked 70 hours a work for a flat rate of about $4,000 a month. He also claimed that he and his co-workers never received overtime pay. They were never informed of tip reductions. Nor were they given weekly wage statements, so they had no indication of their hourly rate or any deductions made from their pay.
Defendant challenged the affidavit and class certification
But the Defendant challenged the affidavit as an unreliable “sham”; pointing out several apparent problems and discrepancies: 1) several parts of the affidavit contradicted Plaintiff’s factual allegations in the original complaint; 2) Plaintiff’s affidavit is dated February 16th, 2022, while the notary’s attestation is dated February 16th, 2021; 3) the notary did not indicate where he was physically located when he notarized Plaintiff’s signature and this suggested the notary may not have been physically present in New York state when he notarized the affidavit, as required by the NY Executive Order permitting remote authorization; 4) most of the other proposed class members (other current and former employees of Defendant) were listed with first names only, and no additional identifying information.
Although the affidavit had issues, the Court gave Plaintiff another chance, because some of the errors could have been translation issues or the result of language barriers
Despite acknowledging the inconsistencies and other problems in Plaintiff’s statements, the Court went on to evaluate whether there was valid corroborating evidence to establish that the Plaintiff was understandably mistaken or confused. In consideration of this other evidence, the court determined that the inconsistencies were not enough to establish Plaintiff’s evidence as “sham”. They explained:
For one, Mr. Huang’s counsel drafted the complaint, while Mr. Huang drafted the affidavit. Plus, Mr. Huang does not speak English. In Mandarin, he told a translator what to include in the affidavit, and the translator wrote it down in English. The translator then orally translated the affidavit back to Mandarin and confirmed with Mr. Huang that the affidavit was accurate. Some of these inconsistencies could be attributed to translation errors.
Although the Court denied Plaintiff’s motion for conditional collective certification, it did so without prejudice, meaning he got another chance to resubmit his evidence.
Certified Translation Services for Cases Dealing with Foreign Laws, Documents, or Witnesses
These three cases illustrate the importance of accurate and certified translations of foreign language documents written in Chinese; French; Spanish; Russian; Italian; Portuguese; Korean; Japanese; Hebrew; German; Armenian; Polish; other foreign languages, especially when dealing with foreign laws, foreign documentary evidence, and taking interpreted video depositions of foreign witnesses A missing, erroneous, or uncertified translation can jeopardize a case, cause delays, or create confusion. Therefore, it is advisable to hire a professional legal translator who can provide high-quality and reliable translations that meet the standards and requirements of the court. A legal translator can also help avoid potential pitfalls and errors that may arise from language barriers, cultural differences, or technical terms. By investing in a certified legal document translation, parties can ensure that their rights and interests are protected and that their case is presented in the best possible light.
Cases Discussed:
ANRION CORP v. IVANOVA, Civil Action No. 22-11272-RGS (D. Mass. Dec. 9, 2022).
Huang v. SAKURA MANDARIN, INC., Civil Action No. 21-3757 (E.D. Pa. Sept. 28, 2022).
Morales v. NEXT STOP 2006, INC., No. Case No. 1: 22-cv-03311 (JLR) (S.D.N.Y. Oct. 27, 2022).
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