Alison Frankel

Wage-and-hour plaintiffs likely to back NLRB’s bid for SCOTUS review of class waivers

September 12, 2016

(Reuters) – On Friday, as expected, the National Labor Relations Board and the Justice Department filed a petition for certiorari in NLRB v. Murphy Oil, asking the U.S. Supreme Court to decide whether employment contracts requiring workers to arbitrate disputes individually are invalid under federal labor laws. The government’s petition for Supreme Court review of a decision from the 5th U.S. Circuit Court of Appeals follows two other requests last week for Supreme Court to hear the same issue. The previous cert petitions were both filed by employers – Epic Systems and Ernst & Young – on the losing side of decisions by federal appellate circuits that found such provisions a violation of the National Labor Relations Act.

E&Y asks for SCOTUS review of employee class waivers, days after Epic petition

September 8, 2016

(Reuters) – How big is the issue of whether employers can bar workers from acting as a group to enforce their rights? So big that on Thursday, the accounting firm Ernst & Young became the second employer in the past seven days to ask the U.S. Supreme Court to resolve a deep split between the federal appellate courts on the legality of mandatory arbitration clauses that require employees to arbitrate disputes individually.

‘Adult’ ad site tells SCOTUS it is First Amendment champion

September 7, 2016

(Reuters) – The online classified ad site, under subpoena by a U.S. Senate subcommittee investigating sex trafficking, on Tuesday told the U.S. Supreme Court that it is, in fact, a victim – not of ad purchasers who may be using the site for illegal ends but of a federal government that does not respect the First Amendment rights of online publishers.’s lawyers at Davis Wright Tremaine and Akin Gump Strauss Hauer & Feld, asked the Supreme Court to stay enforcement of the Senate subpoena for documents detailing how the site screens for illegal ads, arguing that, like Google and Facebook, it has been targeted by an abusive government wielding subpoena power as a bludgeon.

New cert petition asks SCOTUS to review employer bans on class actions

September 6, 2016

(Reuters) – We knew this was coming, just not quite so soon.

Epic Systems, the Wisconsin medical software company, had until Sept. 23 to file a petition asking the U.S. Supreme Court to decide whether employers can require workers to arbitrate employment disputes individually instead of banding together in group actions. Epic’s lawyers at Hogan Lovells must have thought the issue is too hot to wait. They filed Epic’s certiorari petition on Friday, arguing that the Supreme Court must step in to resolve a split that pits the 7th and 9th U.S. Circuit Courts of Appeals against the 2nd, 5th and 8th Circuits, as well as state supreme courts in California and Nevada.

How will 2nd Circuit’s rejection of verdict against PLO affect anti-terror suits?

September 1, 2016

The 2nd U.S. Circuit Court of Appeals more or less said Wednesday that the federal law granting terrorism victims the right to bring private litigation against alleged attack sponsors cannot be applied against the Palestinian Authority and the Palestine Liberation Organization.

Client solicitation 101: Don’t robocall the guy running the mass tort

August 30, 2016

The blessing and curse of automated dialing is that robocallers operate without human assistance. That’s great if the goal of the call is, say, to tell parents of schoolkids about a snow day. But a new class action in federal court in Ft. Worth, Texas, suggests that robocalls just might not be the best way to drum up clients in mass tort litigation.

Bankruptcy strikes corporate sister of controversial mass torts case generator

August 29, 2016

(Reuters) – A Florida corporation called Excelium Management petitioned for Chapter 11 bankruptcy last week in federal bankruptcy court in Miami. The filing comes as one of Excelium’s corporate relatives is fighting to stave off accusations of improper conduct in the sprawling litigation accusing makers of transvaginal pelvic mesh of injuries to women implanted with the device.

Beneath Louis Vuitton’s inability to take a joke, a serious First Amendment question

August 26, 2016

(Reuters) – To just about everyone but Louis Vuitton, the joke is obvious. Inexpensive canvas totes decorated with cartoon versions of famously expensive, iconic designer handbags? That’s funny – especially because the name of the company that makes the totes is My Other Bag, a play on the “My other car is a ” bumper stickers people used to paste on beat-up cars. To highlight the humor, the company name appears in large, loopy script on the other side of the tote bags. No one with even the faintest sense of irony would confuse My Other Bag’s $35 tote bags with actual Louis Vuitton (or Chanel, Hermes or Fendi) pocketbooks.

Is court deference to federal agencies unconstitutional? 10th Circuit judge thinks so.

August 24, 2016

(Reuters) – The first thing I want to tell you about a concurrence by Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals in Gutierrez-Brizuela v. Loretta Lynch is to read it yourself. Rarely will you run across such an elegant legal essay, closely argued and packed with citations yet as accessible as good journalism. If the whole judging thing doesn’t work out for Gorsuch, who is often named as a potential U.S. Supreme Court pick in a Republican administration, he has a real future as a law blogger.

Employer alert: Your arbitration clause is going to be tested at SCOTUS

August 23, 2016

(Reuters) – Something dramatic has happened in the world of employment law this summer, and sooner than later, it’s going to require the attention of the U.S. Supreme Court.