Alison Frankel

At heart of transgender rights case at SCOTUS, a controversial legal doctrine

September 29, 2016

(Reuters) – Briefing wrapped up this week in one of the most hotly anticipated petitions the U.S. Supreme Court will consider this fall: a Virginia school board’s request for the justices to review a federal circuit ruling that under the Department of Education’s interpretation of Title IX, a transgender high school student who identifies as a boy is entitled to use boys’ bathrooms at school.

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.

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.

Criminal defense bar sides with business lobby in False Claims Act case at SCOTUS

August 17, 2016

(Reuters) – It’s easy to understand why groups such as the U.S. Chamber of Commerce, the American Tort Reform Association and the Coalition for Government Procurement are siding with State Farm in one of the most colorful business cases the U.S. Supreme Court will hear in its upcoming term. But the organized criminal defense bar?

Why do securities class actions drag on once SCOTUS gets involved?

July 21, 2016

(Reuters) – When Connecticut State Treasurer Denise Nappier announced Wednesday that the state retirement fund, as the lead plaintiff in a securities class action against the biotech company Amgen, had settled the case for $95 million, I was startled to realize the litigation was still going on.

Federal courts are quietly allowing gun control – and SCOTUS is letting them

June 13, 2016

(Reuters) – Later this week, the justices of the U.S. Supreme Court are scheduled to consider a petition by Connecticut gun rights advocates who want the court to strike down the state’s restrictions on military-style semiautomatic weapons – the type of firearm used in this weekend’s horrific mass shooting at a nightclub in Florida and in the 2012 massacre of first graders at Sandy Hook elementary school.

The rise and (apparent) decline of sealed petitions at the Supreme Court

May 27, 2016

(Reuters) – An item at Howard Bashman’s How Appealing blog caught my eye Thursday. Bashman linked to an article from the Milwaukee Journal Sentinel, reporting that the U.S. Supreme Court will allow Milwaukee District Attorney John Chisholm and two other Wisconsin prosecutors to file a certiorari petition under seal, with only a redacted version available to the public.