On April 2, 2018, the Supreme Court decided Encino Motorcars v. Navarro, a case on its second trip to the high court regarding a dispute over the interpretation of the Fair Labor Standard Act’s overtime-pay requirements and whether it exempts service advisors at car dealerships.
Congress enacted the Fair Labor Standards Act (FLSA) in 1938 to “protect all covered workers from substandard wages and oppressive working hours,” and it requires overtime pay for employees covered under the Act who work more than 40 hours in a given week. The FLSA exempts from this requirement, however, “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers….”
Hector Navarro and other service advisors filed suit against their employer Encino Motorcars, alleging that it violated the FLSA by failing to pay them overtime wages. Encino countered that as service advisors, Navarro and the other plaintiffs fell within the FLSA exemption. The district court ruled in favor of Encino, but the U.S. Court of Appeals for the Ninth Circuit reversed, relying upon a 2011 regulation issued by the Department of Labor (DOL) and indicating that service advisors were not covered by the exemption. The Supreme Court, however, thereafter vacated the judgment of the Ninth Circuit, determining that the regulation at issue was procedurally defective and remanded the case for the Ninth Circuit to reconsider without “placing controlling weight” on the DOL regulation. On remand, the Ninth Circuit, using the distributive canon of statutory interpretation, held that the FLSA exemption did not encompass service advisors. The Supreme Court again granted certiorari.
By a vote of 5-4, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Justice Thomas, the Court held that “service advisors are exempt from the overtime-pay requirement of the FLSA because they are ‘salesm[e]n...primarily engaged in...servicing automobiles.’ §213(b)(10)(A)." Justice Thomas’ majority opinion was joined by the Chief Justice and Justices Kennedy, Alito, and Gorsuch. Justice Ginsburg filed a dissenting opinion, which was joined by Justices Breyer, Sotomayor, and Kagan.
To discuss the case, we have Tammy McCutchen, Principal at Littler Mendelson, PC.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Opening Arguments - OA169: Wells Fargo Goes To Jail?
Today's episode discusses the recent fines levied against Wells Fargo in connection with two specific acts of egregious fraud against consumers. Is it enough? Is it proof that Trump (and Mick Mulvaney) intend rigorous defense of consumers at the CFPB? Listen and find out! First, we delve into a grab bag of items, beginning with a heartfelt apology and Andrew Was Wrong regarding trans language. Next, we deal with a couple of wacky legal cases, before settling in on a bevy of new gun control laws passed in Maryland. Phew! Then, we move into a discussion of Trump v. Hawaii, which was argued before the Supreme Court last week. What's the latest on the Travel Ban? After that, our "C" segment breaks down everything Wells Fargo. Finally, we end with the answer to Thomas Takes the Bar Exam Question #73 about lessees, assignees, and joint and several liability. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances As this show comes out, Andrew was the guest masochist on Episode 141 of God Awful Movies; check it out! And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- From our grab bag: here is a link to the Kobach memo that's PROBABLY NOT WORTH ARGUING; this is the New York Post report on the hilarious Make America Great Again bar lawsuit; and this is the link to all the gun control bills passed in Maryland.
- We first discussed outgoing Federal Reserve Chair Janet Yellen's cease-and-desist order against Wells Fargo back in Episode 146. The current enforcement action by the OCC can be read here.
- We first discussed Trump's (then only proposed) Muslim ban way back in Episode #16, when the conventional wisdom was that it was so unthinkably awful it might lead the Republican Party to replace him at the top of the ticket. Ah, good times.
- Since then, we've discussed the legality of the ban again (in Episode 39), the 9th Circuit's ruling on EO-1 (in Episode 43), and, most recently, the status of OA-2 in Episode 114. In this episode, we cite to the Government's reply brief before the Supreme Court.
Amicus With Dahlia Lithwick | Law, justice, and the courts - Travel Ban 3.0 and Rinsing off Religious Animus for SCOTUS
This week Amicus takes you inside the chamber for a forensic discussion of the last, and possibly the most significant, oral arguments of this Supreme Court term. Dahlia Lithwick is joined by Josh Geltzer, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center and former senior director for counterterrorism at the National Security Council.
Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.
Podcast production by Sara Burningham.
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Opening Arguments - OA168: Michael Cohen Takes Five
In the main segment, we discuss the intersection between the Paul Manafort criminal trial and the public's right to know about the Mueller investigation. Oh, and ... isn't there a bill pending to protect Mueller? We break down that, too. But we're not done! After that we delve into all things Michael Cohen, including his efforts to stay the California civil suit and his less-than-likely efforts to stay out of criminal trouble in New York. If you love Stormy Daniels -- and who doesn't? -- you won't want to miss it. Finally, we end with an all new Thomas Takes The Bar Exam #73 about landlord-tenant-friend relationships. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- From our grab bag: here is a link to the Kobach memo that's PROBABLY NOT WORTH ARGUING; this is the New York Post report on the hilarious Make America Great Again bar lawsuit; and this is the link to all the gun control bills passed in Maryland.
- Click here if you want to read the Comey memos.
- We first discussed the Manafort trial back in Episode 118; this is the Government's Memorandum in Opposition to Manafort's Motion to Suppress, and here is the press motion to unseal portions of the Mueller investigation. Oh, and this is Morrison v. Olson, 487 U.S. 654 (1988), discussed during the show.
- Here's the link to the Washington Post article reporting that Trump has conceded that Michael Cohen "represents me with this crazy Stormy Daniels deal." In this segment, we discuss Kastigar v. U.S., 406 U.S. 441 (1972).
- Finally, you can click here to read the government's status report filed in Cohen's New York investigation.
Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at openarguments@gmail.com
SCOTUScast - WesternGeco, LLC v. ION Geophysical Corporation – Post-Argument SCOTUScast
On April 16, 2018, the Supreme Court heard argument in WesternGeco, LLC v. ION Geophysical Corporation, a case that the Court again took up after having remanded it to the U.S. Court of Appeals for the Federal Circuit for reconsideration in light of the Supreme Court’s 2016 decision Halo Electronics, Inc. v. Pulse Electronics, Inc.
In 2015, WesternGeco sued ION for patent infringement. The jury found in favor of WesternGeco, awarding it $93.4 million in lost profits and a reasonable royalty of $12.5 million. Because the jury also found that ION was “subjectively reckless” in its infringement, WesternGeco petitioned the court for additional damages available under applicable law for “willful” infringement, invoking the then-applicable two-part test set out in the Federal Circuit’s In re Seagate decision, which has both a subjective and an objective component. ION countered by arguing that neither component could be satisfied, and the district court agreed as to the objective component, concluding that ION’s positions had been reasonable and not objectively baseless--and therefore would not support a finding of willful infringement under Seagate.
On appeal the Federal Circuit reversed the award of lost profits, concluding that WesternGeco was not entitled to lost profits resulting from foreign uses of its patented invention. As to the issue of enhanced damages for willful infringement, however, the Federal Circuit affirmed the judgment of the district court. WesternGeco then sought certiorari from the Supreme Court. After issuing its decision in Halo Electronics--which addressed the standard for enhanced damages--the Supreme Court granted the petition, vacated the Federal Circuit’s judgment, and remanded the case for reconsideration in light of the reasoning in Halo Electronics. The Federal Circuit in turn reinstated the part of its previous decision reversing the lost profits award, but otherwise remanded the case to the district court to consider whether the evidence at trial was sufficient to support the jury’s finding of subjective willfulness. If so, the Federal Circuit indicated, the district court must then exercise its discretion to determine whether enhanced damages were warranted.
In the meantime, WesternGeco successfully petitioned the Supreme Court to grant certiorari on whether the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f). That provision makes it an act of patent infringement to supply “components of a patented invention,” “from the United States,” knowing or intending that the components be combined “outside of the United States,” in a manner that “would infringe the patent if such combination occurred within the United States.”
To discuss the case, we have Stephen Yelderman, Professor of Law at Notre Dame Law School.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
In 2015, WesternGeco sued ION for patent infringement. The jury found in favor of WesternGeco, awarding it $93.4 million in lost profits and a reasonable royalty of $12.5 million. Because the jury also found that ION was “subjectively reckless” in its infringement, WesternGeco petitioned the court for additional damages available under applicable law for “willful” infringement, invoking the then-applicable two-part test set out in the Federal Circuit’s In re Seagate decision, which has both a subjective and an objective component. ION countered by arguing that neither component could be satisfied, and the district court agreed as to the objective component, concluding that ION’s positions had been reasonable and not objectively baseless--and therefore would not support a finding of willful infringement under Seagate.
On appeal the Federal Circuit reversed the award of lost profits, concluding that WesternGeco was not entitled to lost profits resulting from foreign uses of its patented invention. As to the issue of enhanced damages for willful infringement, however, the Federal Circuit affirmed the judgment of the district court. WesternGeco then sought certiorari from the Supreme Court. After issuing its decision in Halo Electronics--which addressed the standard for enhanced damages--the Supreme Court granted the petition, vacated the Federal Circuit’s judgment, and remanded the case for reconsideration in light of the reasoning in Halo Electronics. The Federal Circuit in turn reinstated the part of its previous decision reversing the lost profits award, but otherwise remanded the case to the district court to consider whether the evidence at trial was sufficient to support the jury’s finding of subjective willfulness. If so, the Federal Circuit indicated, the district court must then exercise its discretion to determine whether enhanced damages were warranted.
In the meantime, WesternGeco successfully petitioned the Supreme Court to grant certiorari on whether the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f). That provision makes it an act of patent infringement to supply “components of a patented invention,” “from the United States,” knowing or intending that the components be combined “outside of the United States,” in a manner that “would infringe the patent if such combination occurred within the United States.”
To discuss the case, we have Stephen Yelderman, Professor of Law at Notre Dame Law School.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Opening Arguments - OA167: Neil Gorsuch, Secret Liberal?
Today's episode tackles the recent (and shocking) Supreme Court decision in which Neil Gorsuch voted with the Court's liberal justices to produce a very unusual 5-4 alignment. Is this a sign that Gorsuch isn't the right-wing hack we all thought he was? Listen and find out! (Hint: No.) After that, we break down the 6th Circuit's recent opinion in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., the first decision of its kind recognizing that discrimination on the basis of an individual who is transgender or transitioning violates Title VII of the Civil Rights Act of 1964. After that, we answer a listener question about selecting a contingent fee attorney and discuss some of the actual pitfalls as well as misconceptions about those lawyers who take "no money down!" Finally, we end with the answer to Thomas Takes the Bar Exam Question #72 about real property and the transfer of a deed. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- We first warned you about Neil Gorusch way back in Episode 40, and we're definitely not backing down now. If you want to check out his concurrence, you can click here to read the Supreme Court's decision in Sessions v. Dimaya. And, as we discussed on the show, the should-have-been-straightforward holding of this case stems directly from the Court's prior opinion in Johnson v. United States.
- You can read the 6th Circuit's recent opinion in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., and for more coverage of Title VII, check out our discussion of Hively v. Ivy Tech from Episode 60, as well as our most recent update in Episode 152.
SCOTUScast - Upper Skagit Indian Tribe v. Lundgren
On March 21, 2018, the Supreme Court heard argument in Upper Skagit Indian Tribe v. Lundgren, a case that considers whether a state court’s exercise of in rem jurisdiction can be blocked by a tribal assertion of sovereign immunity.
The Lundgren family owns land in Skagit County, Washington. A barbed wire fence with a gate runs across the southern portion of an adjacent lot, near--but not up against--the edge of the Lundgrens’ lot. Since 1947, however, the Lundgrens have treated that fence as the actual boundary line of their property, maintaining both the fence and the property along the southern side of the fence. In 2013, the Upper Skagit Indian Tribe (“Tribe”) bought the adjacent lot from the previous owner, though the Tribe only became aware of the fence when surveying the property following its purchase. In 2014, the Tribe notified the Lundgrens that the fence did not actually represent the boundary line between the two lots, and asserted ownership rights to the entire property, including any lying beyond the fence.
In 2015 the Lundgrens filed an action in state court to quiet title to the disputed strip of property along the fence, arguing that they had acquired title by adverse possession or mutual recognition and acquiescence well before the Tribe made its purchase. The Tribe countered by asserting that its sovereign immunity required dismissal of the Lundgrens’ action, for lack of subject matter jurisdiction. The trial court ultimately rejected the Tribe’s argument and ruled in favor of the Lundgrens. Although the Tribe had refused joinder to the lawsuit, the court reasoned, ownership of the land could be determined without the Tribe’s participation because the court was proceeding in rem and asserting jurisdiction solely over the property, not the landowner. On direct review, a divided Supreme Court of Washington agreed and affirmed the lower court’s judgment. The United States Supreme Court, however, granted the Tribe’s subsequent petition for certiorari, to address whether a court's exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it.
To discuss the case, we have Tom Gede, principal in Morgan Lewis Consulting LLC and of counsel to Morgan, Lewis & Bockius LLP.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
The Lundgren family owns land in Skagit County, Washington. A barbed wire fence with a gate runs across the southern portion of an adjacent lot, near--but not up against--the edge of the Lundgrens’ lot. Since 1947, however, the Lundgrens have treated that fence as the actual boundary line of their property, maintaining both the fence and the property along the southern side of the fence. In 2013, the Upper Skagit Indian Tribe (“Tribe”) bought the adjacent lot from the previous owner, though the Tribe only became aware of the fence when surveying the property following its purchase. In 2014, the Tribe notified the Lundgrens that the fence did not actually represent the boundary line between the two lots, and asserted ownership rights to the entire property, including any lying beyond the fence.
In 2015 the Lundgrens filed an action in state court to quiet title to the disputed strip of property along the fence, arguing that they had acquired title by adverse possession or mutual recognition and acquiescence well before the Tribe made its purchase. The Tribe countered by asserting that its sovereign immunity required dismissal of the Lundgrens’ action, for lack of subject matter jurisdiction. The trial court ultimately rejected the Tribe’s argument and ruled in favor of the Lundgrens. Although the Tribe had refused joinder to the lawsuit, the court reasoned, ownership of the land could be determined without the Tribe’s participation because the court was proceeding in rem and asserting jurisdiction solely over the property, not the landowner. On direct review, a divided Supreme Court of Washington agreed and affirmed the lower court’s judgment. The United States Supreme Court, however, granted the Tribe’s subsequent petition for certiorari, to address whether a court's exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it.
To discuss the case, we have Tom Gede, principal in Morgan Lewis Consulting LLC and of counsel to Morgan, Lewis & Bockius LLP.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
SCOTUScast - Kisela v. Hughes – Post-Decision SCOTUScast
On April 2, 2018, the Supreme Court decided Kisela v. Hughes. In 2010, Andrew Kisela, a police officer in Tucson, Arizona, responded to a report of a woman hacking a tree with a kitchen knife before returning into her home. Two other police officers reported to the scene as well. At the scene, another woman, Sharon Chadwick, was standing in the driveway of a nearby house; Hughes re-emerged from her house and walked towards Chadwick. A chain-link fence with a locked gate separated the officers from Hughes and Chadwick. The officers told Hughes to drop the knife, but she did not acknowledge the officers’ presence nor did she put down the knife. Kisela then shot Hughes from behind the fence, and the three officers jumped the fence and called paramedics who transported Hughes to the hospital to be treated for non-life-threatening injuries. At the time of the incident, all three officers believed Hughes to be a threat to Chadwick. It was later revealed that Chadwick was Hughes’s roommate and that Hughes suffers from mental illness.
Hughes sued Kisela in federal district court, alleging the use of excessive force in violation of the Fourth Amendment. The District Court granted summary judgment in favor of Kisela, but the US Court of Appeals for the Ninth Circuit reversed, holding that the record, viewed in the light most favorable to Hughes, was sufficient to show that Kisela violated the Fourth Amendment. The excessive force violation, the Ninth Circuit held, was obvious--and the law was in its view clearly established under analogous circuit precedent. Kisela’s petition for rehearing en banc was denied over a seven-judge dissent, but the United States Supreme Court thereafter granted certiorari.
By a vote of 7-2, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In light of all the circumstances, the Court indicated in a per curiam opinion, it was “far from [] obvious” that a competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment. Moreover, the Court added, the Ninth Circuit erred in concluding that its own precedent “clearly established” that Kisela’s use of force was excessive. Justice Sotomayor filed a dissenting opinion, which was joined by Justice Ginsburg.
To discuss the case, we have Robert Leider, Associate at Arnold & Porter.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Hughes sued Kisela in federal district court, alleging the use of excessive force in violation of the Fourth Amendment. The District Court granted summary judgment in favor of Kisela, but the US Court of Appeals for the Ninth Circuit reversed, holding that the record, viewed in the light most favorable to Hughes, was sufficient to show that Kisela violated the Fourth Amendment. The excessive force violation, the Ninth Circuit held, was obvious--and the law was in its view clearly established under analogous circuit precedent. Kisela’s petition for rehearing en banc was denied over a seven-judge dissent, but the United States Supreme Court thereafter granted certiorari.
By a vote of 7-2, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In light of all the circumstances, the Court indicated in a per curiam opinion, it was “far from [] obvious” that a competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment. Moreover, the Court added, the Ninth Circuit erred in concluding that its own precedent “clearly established” that Kisela’s use of force was excessive. Justice Sotomayor filed a dissenting opinion, which was joined by Justice Ginsburg.
To discuss the case, we have Robert Leider, Associate at Arnold & Porter.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Opening Arguments - OA166: The Taint Team (& Also, Alex Jones)
In this rapid-response episode, Thomas and Andrew take a look at the attorney-client privilege issues relating to the FBI's search of the offices of Michael Cohen, alleged lawyer to Donald Trump and... Sean Hannity?!? First, we begin with a finishing move from one of our pro wrestler listeners, updating our story that we first covered in Episode 163. (Is it the Million Dollar Dream? Listen and find out!) In the main segment, we break down all that happened (and all that's yet to come!) in the ongoing legal case against Michael Cohen we first discussed in Episode 164. How strong is Cohen's argument that he's entitled to protect the privilege of his legal clients? After that, we take a look at three lawsuits against Alex Jones and InfoWars and start the discussion about what to do about blatantly false, politically-motivated conspiracy theories. Are defamation lawsuits the answer? Finally, we end with an all-new TTTBE #72 about real property law. If you've ever thought about playing along, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- We first discussed the search of Cohen's offices in Episode 164. You can read Michael Cohen's Motion for TRO, which was denied on Monday April 15, as well as his revised request for a special master, which remains pending.
- This is the Gilmore Complaint filed and Alex Jones, and here is a New York Times story on the other two defamation complaints filed by parents of victims of the Sandy Hook shooting.
Opening Arguments - OA165: You Heard It Here First! (Abortion Rights, Gun Control, and Offensive Trademarks)
Note: The "C" segment of this episode (and the show notes) contain hilarious explicit language in order to discuss a recent development in trademark law. You've been warned! In the preshow, we tamp down on some unwarranted liberal freakout regarding a recent White House Executive Order regarding the last few fraying strands of our social safety net. After that, we revisit three cases we told you we'd be keeping an eye on. First, we look at the aftermath of Jane Doe v. Wright, which we first discussed in Episodes 117 and 133. Back then, we told you about the fate of a single young woman in state custody who was denied her right to an abortion; today, we tell you about the nationwide class action that was just certified in Garza v. Hargan. Next, we revisit Kolbe v. Hogan, which we called a "landmark" case way back in Episode 47. Find out how a federal district court judge in Massachusetts just applied Kolbe in upholding the Massachusetts ban on assault weapons and large capacity magazines. For our third revisit, we take a look at another trademark case in light of the Slants case (Matal v. Tam) that we first discussed with Simon Tam way back in Episode 33 and reported on Tam's victory before the Supreme Court in Episode 80. The Slants's victory paved the way for disparaging and offensive trademarks, but what about garden-variety "immoral or scandalous" ones, like FUCT clothing or "Big Dick Nick" towels? Listen and find out! Finally, we end with the answer to the fiendishly hard Thomas Takes the Bar Exam Question #71 about whether a state can discriminate against out-of-state competitors. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- This is Alphr's list of the "15 Best Podcasts of 2018" -- and wow, we're in some good company!
- You can click here to read the White House Executive Order on "Reducing Poverty in America;" we quoted from Section 5 at the end.
- We first discussed Jane Doe v. Wright in Episodes 117 and 133.
- We first told you about Kolbe v. Hogan in Episode 47; now, you can read the Massachusetts decision in Worman v. Healey. Also, if you like briefs, you can read the petition for certiorari, the State of Maryland's opposition, and the petitioners' reply.
- We told you about the Slants's case back in our Episode 33 interview with Simon Tam and reported on Tam's Supreme Court win in Episode 80; today, we discuss In re Brunetti, which applies the Matal v. Tam holding to the rest of 15 U.S.C. § 1052(a).
- Finally, the link you've been waiting for: the Deadspin article about "Big Dick Nick."