Litigation Practice Group Podcast
The Federal Arbitration Act (FAA), passed in 1925, generally requires courts to look favorably upon all arbitration agreements. In 2011, the Supreme Court upheld an arbitration agreement in a contract for mobile phone services that contained a class action ban. The court ruled that a state law that prevented the class action ban from being enforced was “an obstacle to the accomplishment of the FAA’s objectives.”
However, Congress passed the Dodd-Frank Act in 2010, which authorizes the Consumer Financial Protection Bureau (CFPB) to study arbitration agreements in consumer contracts and limit or prohibit them if doing so would be in the public interest and for the protection of consumers. In May 2016, the CFPB issued a proposed rule that would ban arbitration agreements that acted to prevent class action lawsuits and would further establish certain reporting requirements for other arbitrations that are filed between consumers and providers.
Our experts discussed this proposed rule, including the history that led us to this point and the potential impact it will have if it is finalized.
Labor & Employment Law Practice Group Podcast
- Prof. Jason Johnston, Henry L. and Grace Doherty Charitable Foundation Professor of Law, University of Virginia School of Law
- Thaddeus King, Officer, Consumer Banking,The Pew Charitable Trusts
Friedrichs v. California Teachers Association was anticipated to be one of the most significant cases of the Supreme Court’s term. In Friedrichs, the Court was considering whether to overrule its prior decision in Abood v. Detroit Board of Education (1977), which held that public employees can be required to financially support union collective-bargaining with government, but not union political activities. In 2014, the Court sharply criticized Abood’s rationales in Harris v. Quinn, but stopped short of overruling it. Friedrichs was primed to be the final word on Abood’s continuing validity. However, with Justice Scalia’s passing in February, the Court deadlocked 4-4 in Friedrichs, and Abood remains the law of land.
This Teleforum explored the legal landscape post-Friedrichs. This includes the other cases challenging Abood that are pending in the lower courts, and the legal arguments for and against upholding Abood. It also includes cases that concern related matters, such as whether individuals can be required to affirmatively object to paying “non-chargeable” union dues under Abood, and whether individuals who are not full-fledged employees can be included in systems of exclusive representation in the wake of Harris.
Labor & Employment Law Practice Group Podcast
- Scott A. Kronland, Partner, Altshuler Berzon LLP
- William Messenger, Staff Attorney, National Right to Work Legal Defense Foundation, Inc.
On May 18, 2016, President Obama and the Secretary of Labor announced new overtime regulations that will increase the number of workers receiving overtime to all those making under $913/week. In doing so, 4.2 million more workers will be eligible for overtime by December 1, 2016. Advocates assert that the new regulation will bring more families closer to a living wage. Businesses argue that the regulations will inflict costs they will not be able to cover without decreasing base salaries or lowering the number of employees. Legislation is pending in the House and Senate that would prevent the Department of Labor from passing the regulation until they have completed “full and complete economic analysis” and worked to “minimize the impact on such employers, before promulgating any substantially similar rule” (H.R. 2016). Business interests are mobilizing to file a complaint as well. Our labor and employment experts discusses the case.
SCOTUScast 6-16-16 featuring Kenton J. Skarin
- Tammy D. McCutchen, Shareholder, Littler Mendelson, PC
- Elizabeth K. Dorminey, Of Counsel, Wimberly, Lawson, Steckel, Schneider & Stine P.C.
On May 19, 2016, the Supreme Court decided CRST Van Expedited, Inc. v. EEOC. In 2007, the Equal Employment Opportunity Commission (EEOC) filed a sexual harassment suit against CRST Van Expedited (CRST) on behalf of approximately 270 female employees. When a number failed to appear for depositions, however, the district court barred the EEOC from pursuing their claims as a discovery sanction. The remaining claims were dismissed on various other grounds, including 67 claims that the district court dismissed for failure of the EEOC to separately investigate, find reasonable cause for, or attempt to conciliate them. In addition, the court awarded CRST some $4.46 million in attorney’s fees and expenses, on the basis that the claims were frivolous, unreasonable, or without foundation. On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of all but two claims, vacated the award of fees and costs, and remanded the case. On remand, one of the remaining claims was withdrawn and the other settled. CRST renewed its petition for fees, costs, and expenses, and the district court again awarded it approximately $4.6 million.
On a second appeal, the Eighth Circuit again reversed the award, finding that claims which had been dismissed for the EEOC’s failure to meet presuit obligations could not serve as grounds for a fees award, and remanding for an individualized determination as to whether other claims were frivolous, unreasonable, or without foundation.
The U.S. Supreme Court granted CRST’s subsequent petition for certiorari, vacating the judgment of the Eighth Circuit and remanding the case by a vote of 8-0. Justice Kennedy’s opinion for a unanimous Court held that a favorable ruling on the merits is not a necessary predicate to find that a defendant is a prevailing party for purposes of awarding attorney’s fees award. Justice Thomas filed a concurring opinion.
To discuss the case, we have Kenton J. Skarin, who is an Associate at Jones Day. Fourth Annual Executive Branch Review Conference
The slogan "Personnel is policy" reflects the principle that hiring the right people is one of the most important things that employers do. An employer with an innovative approach to bringing on board the best people has a critical edge over her competition. But the rise of interpretations of federal employment law that basically give the Equal Employment Opportunity Commission ("EEOC") veto power over nearly any employment decision means that many creative ideas about hiring will be stillborn. Notably, the EEOC interprets federal civil rights law not just to prohibit employers from discriminating on the basis of race, sex, color, national origin, and age, but also on practices that have a "disparate impact" on members of such groups even if the practice is not actually discriminatory. Because virtually any job qualification has a disparate impact on members of some such group, this interpretation confers extraordinary powers on the EEOC. Disparate impact is widely believed to have led many employers to abandon paper and pencil tests of cognitive ability. More recently, employers have been discouraged from using the Internet to recruit because racial minorities were thought to lack access to the internet relative to members of other racial and ethnic groups. Further, the EEOC also has put pressure on employers to abandon the use of credit and criminal background checks because of their alleged disparate impact on racial minorities. This panel will discuss how the metastasis of disparate impact has strangled innovative hiring strategies in these areas as well as others and other perverse consequences of disparate impact's growth.
This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.
- Hon. Gail Heriot, United States Commission on Civil Rights, and Professor of Law, University of San Diego School of Law
- Mr. James Scanlan, Attorney at Law
- Mr. James Sharf, Sharf & Associates
- Moderator: Mr. John Irving, Of Counsel, Kirkland & Ellis
The Mayflower Hotel