In-House Counsel

In-House Counsel Turn Their Nervous Eyes On The Courts

In-house lawyers try to navigate troubled courthouse waters.

By  
on

At the Association of Corporate Counsel annual meeting, the panel “Hot Cases in the US Supreme Court and Federal Courts,” tackled all the thorny legal disputes in the federal system that threaten tremendous consequences for businesses. Yesterday we covered the workplace discrimination questions the courts are wrestling with, but there are a many other landmines facing companies working their way through the courts that could hurt companies.

But, you know, they probably won’t because every day the federal courts practice Bryan Adams’s “Everything I Do” in harmony while looking at a framed picture of the Dow Jones Average.

David Rivkin of BakerHostetler kicked off the session with a discussion of Expressions Hair Design v. Schneiderman. This case, all too familiar to New York-based observers, involved a challenge to New York’s law prohibiting businesses from posting a cash price, but charging a surcharge for credit cards. The plaintiffs argued that this violated their First Amendment rights, which prompted the Second Circuit to channel their inner Dudes and respond that this isn’t a First Amendment thing, man. Since then, the Supreme Court kicked it back down after ruling 8-0 that the conduct involved is absolutely a speech issue, while declining to determine if any constitutional violation occurred.

Rivkin reasons this was another in the string of classic “Waiting for Garland” decisions from last Term — and appropriately, Garland never showed up — where the justices crafted an 8-0 excuse to punt rather than issue a contentious 4-4 decision on the question of whether a constitutional violation occurred. With Gorsuch behind the bench now, it’s likely we’ve seen the end of this brand of consumer protection in New York, and in the ten other states with similar laws.

The discussion panel also looked at the “Legion Of Labor Doom,” the trio of cases the Supreme Court heard on opening day to resolve a circuit split over whether the NLRA grants working people “rights” in their asymmetrical relationship with their employers. Can employers force their employees to waive their rights to a court and bind them to accept an arbitrator — possibly of the company’s choosing? It depends on whether or not the NLRA provides a substantive or procedural right and all this is academic because the Supreme Court is going to follow through on its decades-long mission of gutting people of their access to the courts and pumping up arbitrator wallets.[1]

Depending on the nature of the company, in-house counsel may be sweating out the Travel Ban saga, especially if they have foreign-born employees traveling abroad. Even if companies aren’t necessarily going to be litigating on behalf of their employees — and some might be — it’s likely on the in-house counsel to be aware that sending your sales rep to Madrid next week might just result in moving your sales rep to Madrid. Is this going to lead to companies discriminating in hiring decisions to avoid the risk that the Trump administration will get super-peeved at Liechtenstein next month?[2] That is, undoubtedly, the challenge for next year’s installment of this panel.

Finally, the panel discussed the ongoing fallout of the Spokeo opinion, where the Court muddied the law by ruling that statutory violations alone cannot grant standing without injury, but that actual concrete harm may not be necessary. Whatever the hell that means.

Sponsored

Unsurprisingly, this has created some confusion, with some courts holding the line against standing, such as Crupar-Weinmann v. Paris Baguette America, that held a FACTA violation that didn’t increase risk of identity theft can’t support standing. On the other hand, Strubel v. Comenity Bank held that insufficient TILA disclosures alone provided standing because the purpose of the statute was to protect consumers (as if that wasn’t the purpose of these other statutes?). Those cases are both Second Circuit opinions. We don’t even have a circuit split so much as a split circuit! And this is before we get into the weeds of whether or not emotional distress is enough of a harm in a case of collecting inflated debt (Moore v. Bilbaum and Assocs.) or the mere risk of an increase in credit card payments is enough to trigger standing (Sayles v. Advanced Recovery Systems).

By the way, if you’re interested in what happened to Spokeo on remand, the Ninth Circuit found actual harm because falsely claiming the plaintiff was married and employed caused actual harm to employment prospects. I guess because some employers want to hire single people? Who, like a Hooters? Hey, whatever it takes to broadly define standing. Looks like the Ninth Circuit saw the Supreme Court’s remand and raised them.

Earlier: Courts Split On LGBTQ Questions, Leaving In-House Counsel Flummoxed
Supreme Court Returns With New Faces, Same Contempt For Working People

[1] Look, I’ve got respect for arbitration — I’ve even worked on that side of the bench. It can serve the public good when the parties approach it on an equal footing. But it can also be an excuse for lazy quasi-jurists to rubber stamp the position of the people paying their bills regardless of what the law says. What do they care if they’re wrong? The poor plaintiff is now behind the 8-ball with an arbitrator’s opinion behind them and an arcane process that gives them that arbitrator the benefit of the doubt ahead of them. So… yeah, forced arbitration sucks.
[2] Some very bad jungen over there!

Sponsored

Topics

, , , ,