Are shareholder lawsuits, filed in opposition to proposed corporate mergers or asset acquisitions, on the rise and, even if so, does that indicate a problem? Does the fact that most such lawsuits are quickly settled indicate they have underlying merit? Who are the winners and losers in such lawsuits, and are the interest of shareholders generally served by such lawsuits? How are attorney’s fees calculated? Assuming something is amiss, is there a remedy? Is the opportunity for intervention by an objector useful?
Prof. Jonathan R. Macey, Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law, Yale Law School
Hon. Gerald Walpin, former Inspector General, Corporation for National and Community Service, former Chief of Prosecutions, Office of the United States Attorney, Southern District of New York
On March 25, 2015, the Supreme Court issued its decision in Young v. United Parcel Service. This case concerns whether the Pregnancy Discrimination Act requires an employer that provides work accommodations to employees who are not pregnant but have work limitations to provide similar accommodations to pregnant employees who share similar abilities and limitations. The U.S. Court of Appeals for the Fourth Circuit affirmed a grant of summary judgment in favor of the employer, agreeing that there was no genuine issue of material fact and that the employer was entitled to judgment as a matter of law.
By a vote of 6-3, the Supreme Court vacated the Fourth Circuit’s judgment and remanded the case for further proceedings. Viewing the record in the light most favorable to the pregnant employee, the Court stated, there is a genuine dispute as to a material fact: whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from that of the pregnant employee. The Court left open for resolution on remand, however, whether a genuine dispute of fact had been raised on the reasons UPS gave for treating the pregnant employee differently and whether they were simply a “pretext” for unlawful discrimination.
Justice Breyer delivered the opinion of the Court, which Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan joined. Justice Alito filed an opinion concurring in the judgment. Justice Scalia filed a dissenting opinion which Justices Kennedy and Thomas joined. Justice Kennedy also filed a dissenting opinion.
To discuss the case, we have Teresa Collett, who is a Professor of Law at the University of St. Thomas School of Law.
On March 24, 2015, the Supreme Court heard oral argument in Michigan v. Environmental Protection Agency. The question in this case is whether the Environmental Protection Agency was acting unreasonably when it did not consider the costs of compliance in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities
To discuss the case, we have Jonathan Adler, who is the Johan Verheij Memorial Professor of Law; Director, Center for Business Law and Regulation at the Case Western Reserve University School of Law.
On December 15, 2014, the National Labor Relations Board published a final rule amending its representation case procedures, which will become effective on April 14, 2015. According to the Board, the final rule retains the essentials of existing representation case procedures but removes “unnecessary barriers to the fair and expeditious resolution of representation cases.” Among other things, the rule shortens the election process to as few as 14 days from the current median time of 38 days, requires employers to give unions employees’ personal telephone numbers and email addresses, and makes post-election appeals discretionary with the Board rather than as of right.
The final rule has been challenged in lawsuits brought by employer associations in the U.S. District Courts for the District of Columbia and Western District of Texas. The complaints allege that the rule will restrict communication between employers and employees before an election, depriving employers of due process and speech rights and employees of information needed to decide intelligently how to vote.
Homer L. Deakins, Jr., Chairman Emeritus, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Brent Garren, Deputy General Counsel, Local 32BJ, Service Employees International Union
Hon. John N. Raudabaugh, former member, National Labor Relations Board, Reed Larson Professor of Labor Law, Ave Maria School of Law, National Right To Work Legal Defense Foundation
On March 9, 2015, the Supreme Court decided Department of Transportation v. Association of American Railroads. The question in this case is whether the Passenger Rail Investment and Improvement Act of 2008 unconstitutionally delegates legislative power to a putatively private entity--Amtrak--by involving it in the creation of standards used to determine whether freight railroads are according the preference to Amtrak’s passenger trains that is required by federal law regarding the use of rail lines.
In an opinion delivered by Justice Kennedy, the Court held unanimously that for purposes of determining the validity of the metrics and standards issued by Amtrak, Amtrak is a governmental entity. Justices Kennedy's opinion for the Court was joined by the Chief Justice and Justices Scalia, Ginsburg, Breyer, Alito, Sotomayor, and Kagan. Justice Alito also filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment. The judgment of the D.C. Circuit was vacated and remanded for further proceedings.
To discuss the case, we have Prof. Alexander “Sasha” Volokh, who is an Associate Professor of Law at the Emory University School of Law. Professor Volokh received his JD and PhD in economics from Harvard University. He regularly teaches a course on law and economics of anti-trust and has participated as an expert witness in cases involving anti-trust or before the FTC.