On Friday, November 7, the U.S. Supreme Court granted a petition for cert in King v. Burwell, the Fourth Circuit Court of Appeals case concerning the payment of subsidies to participants in federally-run versus state-run health care exchanges. Many believe a decision that cuts against the government's interpretation of the statute could undermine Obamacare. A temporary circuit split on the issue was obviated weeks ago when the D.C. Circuit Court of Appeals agreed to en banc review of a three-judge panel decision that reached a result different than had the Fourth Circuit. Our experts discussed why the Court agreed to hear a case that upheld a federal government interpretation of a federal statute.
Meanwhile, LSU Law School Professor John Baker has written a paper (available here) discussing the administration of the settlement fund in the BP Horizon oil spill. In that matter, BP asserts that the fund administrator is awarding damages to plaintiffs who were not harmed by the oil spill, and BP seeks relief in the Court. Later the week of November 10, the Court is expected to consider a cert grant in this important case.
Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center and Professor Emeritus, LSU Law School
At issue in Yates v. United States is the "anti-shredding" provision of the Sarbanes-Oxley Act which makes it a federal crime if one “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct a federal criminal investigation. John Yates was criminally prosecuted because he allegedly destroyed three fish that were too small to be caught legally. According to Mr. Yates, his prosecution was improper because he could not have had fair notice that a fish would be considered a “tangible object." Our expert attended the oral arguments and offered his impressions to a live Teleforum audience.
In 2012 and 2013, Indiana and Michigan, respectively, passed Right to Work laws covering both public and private sector employees. Wisconsin (2012) passed Act 10, which created Right to Work protections for most public employees and limited many aspects of public sector bargaining.
In response to this legislation, unions and their supporters in each of these states filed numerous state and federal lawsuits, challenging these laws on a wide variety of federal and state constitutional grounds. Some of the cases have been decided and others remain pending. The Wisconsin Supreme Court recently turned down a major challenge to Act 10, the Indiana Supreme Court recently heard oral argument on one state constitutional challenge, and the Michigan Supreme Court is slated to hear oral argument soon on a challenge brought by civil service unions. In addition, employees seeking to resign their memberships or cut off dues deductions have filed numerous actions in state courts and administrative agencies to enforce the laws in the face of union policies designed to restrict resignations and dues revocations. The current status of the three states’ laws and the many court challenges will be discussed in this Teleforum.
Milton L. Chappell, Staff Attorney, National Right to Work Legal Defense Foundation
On October 8, the U.S. Supreme Court heard oral arguments in Integrity Staffing Solutions, Inc., v. Busk. The case involves a dispute between Nevada warehouses and their employees. The warehouses fill orders for Amazon.com customers. At the conclusion of shifts, employees spend time being screened to make sure they haven’t stolen anything from the shelves or the bins, a company requirement before they leave for the day. The company refers to this process as “inventory control.” Employees claim that the time spent undergoing the screening is compensable under the Fair Labor Standards Act, while the employer asserts that the screening procedure is analogous to the time employees spend clocking out on their way out the door, and is not compensable. Employers also assert that they must be able to protect their businesses with security measures without having to choose between security and compensating employees for their time going from point A to point B, which would raise operating costs.
Karen R. Harned, Executive Director of the National Federation of Independent Business Small Business Legal Center, attended the oral arguments, and she offered her analysis of the facts of the case and the possible outcome.
Karen R. Harned, Executive Director, National Federation of Independent Small Business Legal Center
Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee will provide an update on recent important activity at the Consumer Financial Protection Bureau (CFPB) on this Teleforum conference call. Recent developments include the CFPB Student Loan Ombudsman’s comments at a meeting of the American Bar Association Business Law Section, the CFPB’s lawsuit against Corinthian Colleges, Inc., a recent CFPB report on fair lending in the indirect auto loan market, a report from the Government Accountability Office on the CFPB’s data collection practices, Director Richard Cordray’s remarks on public service and student debt, and a Washington Post article on whether Wal-Mart and Apple’s provision of some financial services may subject them to oversight by the CFPB.
Julius L. Loeser, Of Counsel, Winston & Strawn LLP
Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law