The New Jersey Supreme Court’s Latest Decision Affecting Pharmaceutical Multicounty Litigation

On October 3, 2018, the New Jersey Supreme Court made its long-awaited decision in the Accutane Multicounty Litigation. Developed by the New Jersey-based pharmaceutical giant Hoffman-La Roche, Accutane is a prescription acne treatment that has been found to be linked to inflammatory bowel disease.

Numerous plaintiffs filed lawsuits in New Jersey, essentially claiming that, based upon the drug maker’s own internal documents, Accutane’s warnings should have been stronger in stating that Accutane has been found to directly cause inflammatory bowel disease. A Multicounty Litigation was formed, which encompassed 532 plaintiffs – of which 18 were New Jersey residents, and 514 were residents of 44 different jurisdictions other than New Jersey.

In 2015, the trial court basically ruled that NJ’s Product Liability Act governed all of the cases in the Multicounty Litigation. Unlike the law in most other states, New Jersey’s Product Liability Act contains a rebuttable presumption that basically holds that a drug maker’s warning is adequate if it was approved by the United States Food and Drug Administration. The presumption can only be overcome if the plaintiffs show deliberate nondisclosure to the Food and Drug Administration, economically driven manipulation of the regulatory process, or clear and convincing evidence that the drug maker knew or should have known of the inadequacy of the warnings in light of the relevant federal regulations. Having found that the presumption applies to all of the cases, the trial court then held that the plaintiffs could not overcome the presumption and dismissed the cases.

That decision was appealed and the Appellate Division found that New Jersey’s Product Liability Act did not govern all of the cases, and that each case was governed by the respective laws of the jurisdictions where the plaintiff used Accutane. The Appellate Division analyzed the many different legal standards and found that the cases from the vast majority of the jurisdictions involved (including New Jersey), should not be summarily dismissed based on the federal approval presumption.

The matter was then taken up by the Supreme Court, which held that New Jersey has an interest in consistent, fair, and reliable outcomes in its consolidated Multicounty Litigation cases that cannot be achieved by applying a “diverse quilt of laws.” Having found that all of cases in the Multicounty Litigation were governed by New Jersey’s Product Liability Act, the Supreme Court went on to hold that the plaintiffs had not overcome Act’s rebuttable presumption and that the drug maker’s approved warnings were adequate as a matter of law. Accordingly, the Supreme Court dismissed all 532 cases.

The ramifications of the Supreme Court’s holding are still unclear. A recent, palpable lull in New Jersey Multicounty Litigation applications and filings was followed by changes on the bench through judicial retirements and promotions. Thereafter, there was a relative flurry of designations of Multicounty Litigations for Abilify, Taxotere, Zostavax and Physiomesh, all in the late spring and summer of 2018. No doubt, this Supreme Court ruling will serve to shape the procedural structure and legal strategy of the parties in all pending and contemplated pharmaceutical Multicounty Litigations in New Jersey.

 

COPYRIGHT © 2018, Stark & Stark.

What Investors Need to Know About the New $6.2 Billion Visa, Mastercard Settlement

Visa, Inc., Mastercard, Inc., and other financial institutions have agreed to pay merchants between $5.56 billion and $6.26 billion to settle a 13-year old antitrust litigation. For years, the case has driven shrewd investors to transact with retailers seeking to monetize their claims against the card companies. With a much-anticipated settlement now on the table, would-be investors should take note.

On September 18, an amended settlement agreement (the “Settlement”) was filed in the US District Court for the Eastern District of New York. The Settlement signals possible resolution of a long-standing lawsuit brought in 2005 by approximately 12 million retailers accusing Visa and Mastercard of improperly inflating interchange fees (also known as swipe fees) charged to retailers. The Settlement modifies a prior settlement agreement approved by the District Court in December 2013.1

The agreement, reached after a year of active mediation, seeks to remedy the flaws of the prior agreement. Notably, the Settlement limits both the scope and duration of the release. Additionally, it addresses only monetary damages associated with the lawsuit and is not contingent on the resolution of injunctive relief claims, which may be pursued separately.

Under the Settlement, the value of a merchant’s claim will be based on the amount of interchange fees attributable to that merchant’s Mastercard and Visa payment card transactions during the time period beginning January 1, 2004 up until the preliminary approval date of the Settlement. Pro rata payments to merchants who file valid claims will be determined by the amount remaining in the monetary fund after deductions for “opt outs” (as described below) and administrative costs, and by the aggregate dollar amount of claims filed.2

Similar to the prior agreement, the Settlement provides that the monetary fund may be reduced based on the number of merchants that opt out of the class. Up to $700 million may be returned to the defendants if more than 15 percent of the merchants opt out. If more than 25 percent of merchants opt out, the Settlement may be terminated.

The Settlement is still subject to approval by US District Judge Margo Brodie. If the Court grants preliminary approval, known class members will receive written notice concerning their legal rights. Claim forms are not available at this time.

Katten will keep you apprised of settlement developments and trading considerations. The case is In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, case number 1:05-md-01720, in the US District Court for the Eastern District of New York.


1 In June 2016, the US Court of Appeals for the Second Circuit invalidated the original settlement on the grounds that certain merchants were not adequately represented because the same counsel had represented separate settlement classes with conflicting interests. The Court of Appeals also took issue with the broad release that would preclude merchants from pursuing certain future claims indefinitely. In March 2017, the Supreme Court declined to hear the case, remanding it back to the District Court for further proceedings.

2 The original settlement of $7.25 billion was, at the time, the largest in history. However, thousands of merchants ultimately opted out, reducing the monetary fund to approximately $5.3 billion.

©2018 Katten Muchin Rosenman LLP

You’ve Been Sued: How to Avoid Early Missteps

Litigation doesn’t have to be catastrophic for a growing company, but it can quickly spiral out of control if not handled properly.  This article will explore issues to consider when your company is faced with a lawsuit

 

Stop All Communications

Most lawsuits don’t come out of the blue.  They usually are preceded by a back-and-forth with the other person or company, sometimes through counsel but often without.  Emerging companies understandably need to keep costs in check, so it is not uncommon for a company to try to deal with a brewing dispute on its own.  But once litigation hits, it is important to put pens down and consult counsel immediately.  Everything you write or say – internally, to the other side, or to anyone else (except your attorney) – can be obtained by the other side during the lawsuit’s discovery process.  You don’t want anyone to write or say something in the early hours of the lawsuit that unnecessarily pins the company down or hurts it later in the litigation.

Preserve Documents and Files

Although it sounds mundane, it is crucial that the company preserve all documents and files that may be relevant to the dispute.  In a nutshell, the company will need to preserve every document that relates to the issues raised in the lawsuit.  And “document” includes both hard copy documents as well as emails, text messages, voicemails, electronic files, and everything else that contains relevant information.  It encompasses more than just the important documents or communications.  It includes anything that bears on the claims asserted in the complaint and your potential defenses to those claims.

Preserving evidence includes obvious things, like not deleting emails, text messages, or electronic files, and not throwing away hardcopy files.  But it also includes less obvious steps, like turning off any settings in your email system that automatically purge messages after a set period of time or after the mailbox reaches a certain size.  It also includes preserving data and files on individual laptops, desktops, and other devices, if that data isn’t saved on a company server or other system.  There are potential landmines everywhere, and failing to preserve relevant evidence – called spoliation – can dramatically affect a case.

Gather the Facts and Understand the Law

It is important to gather and understand the underlying facts as soon as possible.  This involves not only reviewing relevant documents, but also talking to key players who were involved in the matter.  While the process doesn’t have to be exhaustive at this early step, it must be deep enough for the company to be able to make a reasonable assessment of the case.

If there are good facts, you want to know them.  If there are bad facts, you need to know them early, so you can factor them into your decision about how to proceed.  You will need to assess the facts, good and bad, in light of the relevant law and begin to assess the strengths and weaknesses of the plaintiff’s claims, as well as your likely defenses and any potential counterclaims you may have against the plaintiff.

Other things you and counsel should consider at the outset are: whether the company has insurance that may cover the lawsuit and any potential settlement or judgment that results; whether someone else has an obligation to indemnify the company in connection with the lawsuit; whether the lawsuit was filed in the right court; whether the plaintiff was required to bring the claim in arbitration rather than court; whether the plaintiff waited too long to sue such that one or more claims may be barred by a statute of limitations; and whether the company has any counterclaims it could assert against the plaintiff.

Establish a Plan

Armed with an understanding of the facts and the relevant law, you should establish a plan for how to proceed with the lawsuit.  Should you fight to the end?  Is it better to settle early?  There’s no one-size-fits-all answer to those questions.  The answer will be unique to your company, the lawsuit you’re facing, and the opposing party with whom you’re dealing.  You should weigh each potential outcome, including the cost to reach that outcome, and assess how it will impact your company.  Be wary of sacrificing business goals for the sake of litigation.

Your plan for the case does not have to be static.  It can change over time, as the litigation unfolds.  Even when you have thoroughly analyzed the available facts at the outset of a case, the landscape almost always changes as the case proceeds and additional evidence comes to light.  Your strategy can evolve with the landscape.

Prepare for the Long Haul

Litigation can be painfully slow.  Few things in litigation happen quickly, and it usually takes more than a year to get to trial, and sometimes two or three years depending on the type of case.  After the Complaint is filed and served, there typically will be motions practice, additional pleadings, and an extended period of discovery where the parties gather and produce relevant documents, depose fact witnesses, and retain expert witnesses to provide reports and give testimony.  It is a long process, and parties should be prepared for the possibility that it could take years for the case to wind its way through it and get to trial.

Settlement Considerations

Although you need to prepare your case as though it will go to trial, the reality is that almost all cases eventually settle.  Some cases are resolved through direct discussions between the parties (typically through counsel).  Others are settled through the use of a mediator, who serves as an independent third party to foster settlement discussions and attempt to resolve the dispute.  Mediation is voluntary, and the mediator cannot force either party to settle.  But an effective mediator can bring a fresh perspective to a lawsuit, giving each side an unvarnished view of how a judge and jury may see their case.  That alone can serve as a useful reality check to parties who have been living with a case for months or years and may have difficulty viewing it dispassionately.

Conclusion

No company wants to be sued.  But the odds are that your company will face at least one lawsuit in its lifetime.  By knowing what to expect and being proactive when it happens, you can avoid some of the pitfalls that strike less prepared companies.  And by approaching it with a clear plan and developed strategy, you can put your company in the best position to prevail in the lawsuit or resolve it on favorable terms.

Read more about Legal Issues for High-Growth Technology Companies: The Series.

© 1998-2018 Wiggin and Dana LLP
This post was written by Joseph C. Merschman of Wiggin and Dana LLP.

BIPA Claims Against United Airlines Must be Arbitrated Due to Collective Bargaining Agreement

Last month a federal district court dismissed a putative class action lawsuit against United Airlines challenging its use of fingerprint scanning timeclocks. The lawsuit brought by United employee David Johnson alleged that the company’s collection and use of employees’ fingerprints violated the Illinois Biometric Information Privacy Act (BIPA) because the company failed to get the requisite consent from its employees for fingerprint collection and use.

In dismissing the lawsuit, the court found it lacked federal jurisdiction to resolve the dispute on two grounds. In the first instance, the court observed that the federal Railway Labor Act (RLA) creates a mandatory and exclusive arbitration process for resolving labor disputes that require interpretation of a collective bargaining agreement (CBA). The CBA between United and its employees gave United the “sole and exclusive right to manage, operate, and maintain the efficiency” of the workplace. Therefore, any resolution of Plaintiff’s challenge under BIPA of United’s collection and use of fingerprints as part of its timekeeping technology necessarily requires interpretation of the scope of the CBA. And, thus, “[b]ecause there is no way for the Plaintiff to pursue a BIPA claim without interpreting the existing CBA,” the court concluded that its resolution of Plaintiff’s BIPA claim was preempted by the RLA’s mandatory arbitration requirement, and that the court lacked jurisdiction to decide the claim.

In the second instance, echoing two other recent federal BIPA cases, the court concluded that violation of BIPA’s notice and consent requirement alone is not adequate injury to establish standing to sue in federal court under Article III of the U.S. Constitution. The court found that a lack of consent, while a technical violation of the statute, does not itself alone increase the risk of disclosure that could result in injury or harm to the individual. Absent any actual compromise of the biometric information, or an increased risk of such compromise, there was no injury-in-fact, and thus no federal jurisdiction. While the court’s ruling in this regard continues the trend of other federal courts, it’s worth noting that standing to sue in Illinois state court is unaffected by these decisions. Whether a plaintiff or class action may succeed in state court based upon a mere technical violation of BIPA’s requirements—without more—remains an open question the Illinois Supreme Court is expected to answer in its next session.

Putting it Into Practice: Companies negotiating collective bargaining agreements should be aware that the right language may allow for resolution of many labor disputes, including disputes arising under BIPA, through mandatory arbitration rather than through the courts. When collecting and using biometric information, companies should continue to pay attention to BIPA’s requirements regarding consent, notice, and disclosure because although federal courts have dismissed suits predicated only on mere technical violations of the statute, other avenues of recourse may still be available to plaintiffs in state court and via arbitration.

Copyright © 2018, Sheppard Mullin Richter & Hampton LLP.

California Supreme Court Holds That High Interest Rates on Payday Loans Can be Unconscionable

On August 13, 2018, the California Supreme Court in Eduardo De La Torre, et al. v. CashCall, Inc., held that interest rates on consumer loans of $2,500 or more could be found unconscionable under section 22302 of the California Financial Code, despite not being subject to certain statutory interest rate caps.  By its decision, the Court resolved a question that was certified to it by the Ninth Circuit Court of Appeals.  See Kremen v. Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003) (certification procedure is used by the Ninth Circuit when there are questions presenting “significant issues, including those with important public policy ramifications, and that have not yet been resolved by the state courts”).

The California Supreme Court found that although California sets statutory caps on interest rates for consumer loans that are less than $2,500, courts still have a responsibility to “guard against consumer loan provisions with unduly oppressive terms.”  Citing Perdue v. Crocker Nat’l Bank (1985) 38 Cal.3d 913, 926.  However, the Court noted that this responsibility should be exercised with caution, since unsecured loans made to high-risk borrowers often justify their high rates.

Plaintiffs alleged in this class action that defendant CashCall, Inc. (“CashCall”) violated the “unlawful” prong of California’s Unfair Competition Law (“UCL”), when it charged interest rates of 90% or higher to borrowers who took out loans from CashCall of at least $2,500.  Bus. & Prof. Code § 17200.  Specifically, Plaintiffs alleged that CashCall’s lending practice was unlawful because it violated section 22302 of the Financial Code, which applies the Civil Code’s statutory unconscionability doctrine to consumer loans.  By way of background, the UCL’s “unlawful” prong “‘borrows’ violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.”  Citing Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 180 (1999).

The Court agreed, and found that an interest rate is just a term, like any other term in an agreement, that is governed by California’s unconscionability standards.  The unconscionability doctrine is meant to ensure that “in circumstances indicating an absence of meaningful choice, contracts do not specify terms that are ‘overly harsh,’ ‘unduly oppressive,’ or ‘so one-sided as to shock the conscience.”  Citing Sanchez v. Valencia Holding Co., LLC, 61 Cal.4th 899, 910-911 (2015).  Unconscionability requires both “oppression or surprise,” hallmarks of procedural unconscionability, along with the “overly harsh or one-sided results that epitomize substantive unconscionability.”  By enacting Civil Code section 1670.5, California made unconscionability a doctrine that is applicable to all contracts, and courts may refuse enforcement of “any clause of the contract” on the basis that it is unconscionable.  The Court also noted that unconscionability is a flexible standard by which courts not only look at the complained-of term, but also the process by which the contracting parties arrived at the agreement and the “larger context surrounding the contract.”  By incorporating Civil Code section 1670.5 into section 22302 of the Financial Code, the unconscionability doctrine was specifically meant to apply to terms in a consumer loan agreement, regardless of the amount of the loan.  The Court further reasoned that “guarding against unconscionable contracts has long been within the province of the courts.”

Plaintiffs sought the UCL remedies of restitution and injunctive relief, which are “cumulative” of any other remedies.  Bus. & Prof. Code §§ 17203, 17205.  The question posed to the California Supreme Court stemmed from an appeal to the Ninth Circuit of the district court’s ruling granting the defendant’s motion for summary judgment.  The California Supreme Court did not resolve the question of whether the loans were actually unconscionable.

 

Copyright © 2018 Womble Bond Dickinson (US) LLP All Rights Reserved.
For more litigation news, check out the National Law Review’s Litigation Type of Law page.

Last Minute Extension, Discrimination & Due Process: Attorneys Fight for Victims of Hurricane Maria

The stakes were very high: Puerto Rican refugees, victims of Hurricane Maria were about to become homeless as FEMA planned to cancel its Temporary Shelter Assistance program.  Thousands of refugees living in hotels and motels would find themselves evicted, many having nowhere to go.  A telephonic hearing and a last minute ruling required FEMA to continue the program, but the legal battle continues.  Offering insight on the issues at hand are attorneys Craig de Recat and Justin Jones Rodriguez of the law firm Manatt, Phelps & Phillips, who, along with Eve Torres of Manatt, LatinoJustice and the Law Offices of Hector E. Pineiro, are working hard to ensure the victims of Hurricane Maria receive the proper assistance and due process they deserve under the law, holding FEMA accountable to their responsibilities to individuals who have already lost so much.

FEMA announced plan to terminate the Transitional Sheltering Assistance program for victims of Hurricane Maria on June 30th.  The previously mentioned partners filed a lawsuit and emergency motion for a Temporary Restraining Order, a move that would fend off the evictions and compel FEMA to continue providing rent subsidies.  After a telephone conference that evening, Federal Judge Leo Sorokin issued a temporary restraining order to provide shelter throughout the weekend and through the 4th of July holiday.  On July 2nd, another hearing was held with Judge Hillman, who issued a TRO extending the program for a longer stretch of time.

Discrimination in FEMA’s Response Efforts A Major Issue in Litigation

Justin Jones Rodriguez, an attorney with Manatt, said: “we had a hearing on August first and the judge recognized there were some unanswered questions, particularly about our discrimination claim.”  The hearing on August 1st extended the TSA program until the end of August, and allows evidence to be gathered and testimony to be given and considered.  That said, Rodriguez says,  “We believe the facts are clear here that hurricane victims after Harvey in Texas are treated one way and hurricane victims in Puerto Rico after Maria were treated a very different way. “  Craig de Recat, also with Manatt, compares FEMA treatment of Hurricane Maria victims with the FEMA treatment of Hurricane Harvey, pointing out that Puerto Ricans hold a dual nationality, but are US citizens nonetheless, and are entitled to FEMA relief.   He says:

The facts are abundantly clear and even confirmed by FEMA in its post-incident report, showing that they did not treat Puerto Rican refugees, including these individuals that are in the continental United States in the same way they treated Harvey Refugees.  Harvey Refugees had a  much quicker response, a much more robust response, were promised financial aid for a longer period of time and an assurance that they were going to be given personal individual case management support to help the individuals and their families.

One way this discrimination case is laid out is the complaint is through comparison of Presidential tweets on the respective tragedies.  The complaint points to a tweet on September 30, 2017 from President Trump that says:  “Puerto Ricans ‘want everything to be done for them.’”  Roughly two weeks later, President Trump sent out a tweet that said FEMA and other disaster relief could not stay in Puerto Rico “forever!”  In comparison, two weeks after Hurricane Harvey hit Texas and after the President had visited the state, he tweeted: “After witnessing first hand [sic] the horror & devastation caused by Hurricane Harvey, my heart goes out even more so to the great people of Texas.”  The complaint goes into greater detail, comparing the response of FEMA on several levels as being discriminatory against the victims of Hurricane Maria, everything from the initial rate of individual grant denials being double in response to Hurricane Maria than for Hurricane Harvey, and pointing out that even though Hurricane Maria destroyed more homes in Puerto Rico than Hurricane Harvey did in Texas, the relief has overwhelmingly been provided to Texans–of the 60,000 households provided housing assistance by FEMA, over 54,000 of the affected households receiving relief were devastated by Harvey–not Maria.

FEMA Failed to Provide Appropriate Due Process

Another claim against FEMA is their failure to provide the victims of Hurricane Maria with due process under the law.  De Recat points out that if FEMA Is going to pull services, they have a responsibility to provide the individuals affected with information on how to appeal that decision.  He says:  “If FEMA is saying, we are not going to give you financial assistance or we’re not going to help you anymore, then those individuals should be provided with knowledge of how they can appeal that decision. That is a fundamental due process right that all Americans have and that is not being given to these people. They’re just given a summary determination without any right or knowledge of their right of appeal.”

Making a comparison again, to Hurricane Harvey victims, Rodriguez points out that FEMA had provided case management services to victims of Hurricane Harvey, ensuring each individual and family had a place to go when the TSA program terminated. However, victims of Hurricane Maria were not given the same level of attention.  Rodriguez says, “Case management services consisted of a published toll free telephone number posted for them to call, which we’ve received reports that it wasn’t working.”

The case continues, and attorneys representing the Hurricane Maria victims remain dedicated to seeking a legal solution and holding FEMA to the appropriate standard.  Rodriguez, when asked about his involvement, says simply, “It’s the right thing to do. When Latino Justice reached out to me I was happy to jump on board as an individual.  It would be dishonest  for me to say that I’m not motivated by the fact that I’m a Hispanic American and the way that these Puerto Rican individuals are being treated by the administration is unjust and unconstitutional.”  de Recat says it is a privilege to represent the victims of Hurricane Maria and to stand with them against this injustice.  He says, “when we have opportunities like this to step in and help the disenfranchised or the least powerful of our community, then that is part of our obligation, our duty as practicing lawyers within the profession, and I don’t mean to sound corny, but It is a privilege to represent these people and to stand by them and for them. And that is personally enormously rewarding.“

A decision is expected in this case by August 31st.

Copyright ©2018 National Law Forum, LLC.

Court Cites Supreme Court’s China Agritech Decision In Decertifying TCPA Class Action

The Northern District of Illinois recently granted a motion to decertify a class of TCPA plaintiffs in light of the U.S. Supreme Court’s decision in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018), which held that the equitable tolling doctrine does not apply to successive class actions. See Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., No. 14-2032, 2018 WL 3659349 (N.D. Ill. Aug. 2, 2018). In doing so, the court observed that plaintiffs can no longer “wait out” a statute of limitations and then “piggy back on an earlier, timely filed class action.” Id. at *1.

The Cirque du Soleil case was the “third successive action filed against defendants by the same counsel … based on the same fax transactions.” Id. at *1. The plaintiff alleged that defendants had advertised theatrical shows by transmitting faxes that lacked proper opt-out instructions. Id.The plaintiff filed the case in 2014 and asserted TCPA claims arising from faxes that defendants had allegedly sent in 2009. Id. at *2. Thus, it was undisputed that the plaintiff had not filed the case within the applicable four-year limitations period. Id.

The defendants moved for summary judgment and argued that the claims were time-barred. See id. at *2. But the court denied that motion in light of the controlling rule in the Seventh Circuit at the time, which was that the “commencement of the original class suit . . . toll[ed] the running of the statute of limitations for all purported members of the class”—regardless of whether the class members subsequently filed an individual action or yet another class action. Id. Earlier this year, the court granted the plaintiff’s motion for class certification. Id.

A few months later, however, the Supreme Court’s decision in China Agritech abrogated the prior Seventh Circuit rule by drawing “a clear distinction between successive individual suits and successive class actions.” Id. at *3. The China Agritech court explained that previous Supreme Court case law on the subject ‘“addressed only putative members who wished to sue individually after a class-certification denial.”’ Id. (quoting China Agritech, 138 S. Ct. at 1806). The cases “did not ‘so much as hint[] that tolling extends to otherwise time-barred class claims.”’ Id.(same).

The Cirque du Soleil defendants then moved to decertify the class and argued that the plaintiff’s class claims were untimely in light of the China Agritech holding. Id. at *1. The court granted that motion, finding that a “straightforward application of China Agritech . . . does not permit the maintenance of a follow-on class action past the expiration of the statute of limitations.” Id. at *3. “Allowing the same counsel to litigate three successive class actions over nine years,” the court explained, “is exactly the abuse of tolling that China Agritech seeks to prevent.” Id. at *6. Accordingly, the court decertified the class, leaving the plaintiff with only its individual claim on its own behalf.

 

©2018 Drinker Biddle & Reath LLP. All Rights Reserved

Lack of Presidential Appointment May Invalidate ALJ Decisions

In one of its last opinions of the term, the U.S. Supreme Court held in Lucia v. U.S. Securities and Exchange Commission (SEC) on June 21, 2018, that administrative law judges (ALJs) are officers of the United States, not mere employees, and therefore must be appointed under the Constitution’s Appointments Clause. The decision leaves important questions open for individuals that have faced or are currently facing administrative proceedings before the SEC and other government agencies.

The Constitution’s Appointments Clause requires that “inferior officers” be appointed to their positions by the President, the courts or the Heads of Departments, or agency commissioners. The case at hand, Lucia v. SEC, concerned an administrative proceeding by the SEC against investment broker Raymond Lucia, whom the SEC accused of using misleading marketing practices to deceive prospective clients.

Mr. Lucia appealed the decision of the administrative law judge, who had fined him $300,000 and barred him for life from the investment industry, on the grounds that the presiding judge had been unconstitutionally appointed. The judge that heard Mr. Lucia’s case, along with the four other ALJs at the SEC, was not appointed by Commissioners, but by staff. Shortly after the case was filed, the SEC sought to remedy any potential constitutional violation by having the Commissioners simply appoint the five ALJs. The Court overturned the ruling against Mr. Lucia after the majority concluded that administrative law judges are “officers” of the United States. The Court went on to hold that Mr. Lucia was entitled to have his case heard before a new ALJ, despite the fact that the ALJ that heard his case had subsequently constitutionally appointed.

What remains to be seen is how federal courts will treat appeals by defendants from adverse administrative decisions in cases where an objection was made to the constitutionality of the presiding judge. Did the SEC remedy the issue in these cases completely when the Commissioners appointed the five administrative judges or will new proceedings be required? If so, can the same judge who heard a case before his/her appointment by the Commissioners, then hear the same case a second time? Perhaps most importantly, will litigants succeed in bringing challenges to the constitutionality of presiding ALJs in other governments agencies such as the Social Security Administration, which employs more than 1,400 ALJs who oversee more than 700,000 cases a year? While Lucia involved highly specific facts, the logic of the majority opinion would appear to apply to agencies outside the SEC.

 

© Polsinelli PC, Polsinelli LLP in California
This article was written by Michael M. Besser, Edward F. Novak of Polsinelli PC.

University Wins Important Tuition Claw-Back Case

A federal bankruptcy court in Connecticut recently ruled in favor of Johnson & Wales University in a tuition claw-back caseRoumeliotis v. Johnson & Wales University (In re DeMauro), 2018 WL 3064231 (Bankr. D. Conn. June 19, 2018). Wiggin and Dana attorneys Aaron Bayer, Benjamin Daniels, and Sharyn Zuch had filed an amicus curiae brief in support of the University on behalf of the Connecticut Conference of Independent Colleges, the Association of Independent Colleges & Universities of Massachusetts, and the Association of Independent Colleges & Universities of Rhode Island.

The federal bankruptcy trustee in Roumeliotis sought to force the University to disgorge tuition payments that the parent-debtors had paid on behalf of their daughter. The trustee claimed that the payments were fraudulent transfers because the parents were insolvent at the time, and because the trustee believed that parents do not receive value when they pay for their adult children’s education. The trustee argued that the tuition should be returned to the debtors’ estate and be available for distribution to the parents’ creditors – even though the University was unaware of the parents’ financial circumstances when it received the payments and had long since provided the educational services to the daughter.

The bankruptcy court granted summary judgment dismissing the claim, finding that the tuition was never part of the parents’ assets. The decision turned, in large part, on the precise nature of the tuition payments at issue. The parents had used federal Direct PLUS Loans to pay the tuition. However, under that program, the proceeds of the loan were paid directly to the University and never held by the parents. Therefore, the loans were never technically the parents’ assets and never were held by the parents. To hold otherwise, the court concluded, would conflict with and undermine the purposes of the Direct PLUS Loan program. The trustee has not taken an appeal.

You can find the Bankruptcy Court decision here You can find the amicus brief here.

We continue to await a decision by the First Circuit in another very significant tuition claw-back case, DeGiacomo v. Sacred Heart University (In re Palladino), No. 17-1334 (1st Cir.). In that case, the Court is expected to rule on the question whether parents received “reasonably equivalent value” for tuition payments they made on behalf of their child. The bankruptcy trustee claims that they did not, because the child and not the parents received the education, and seeks to recover the tuition payments from the University.

© 1998-2018 Wiggin and Dana LLP

This post was written by Aaron Bayer and Benjamin Daniels of Wiggin and Dana LLP.

Brett Kavanaugh Nominated to U.S. Supreme Court

In the wake of Justice Anthony Kennedy’s retirement, President Donald Trump was presented with the rare opportunity to make his second U.S. Supreme Court nomination in as many years, nominating the Honorable Brett M. Kavanaugh to succeed Justice Kennedy. If confirmed by the Senate, Judge Kavanaugh would bring more than a dozen years of judicial experience to the position.

While the nomination process was swift, the confirmation process is likely to be contentious. Any nominee to the Supreme Court can expect deliberate and careful scrutiny, but in the context of losing Justice Kennedy’s critical “swing” vote, Judge Kavanaugh’s record of judicial decisions will receive even more attention than usual.

Career

Judge Kavanaugh, a federal judge on the U.S. Court of Appeals for the D.C. Circuit, received his B.A. from Yale College in 1987 and his J.D. in 1990 from Yale Law School, where he was a Notes Editor on the Yale Law Journal. Judge Kavanaugh’s lengthy experience with the judicial process began immediately upon graduation from law school, having clerked for Judge Walter Stapleton of the U.S. Court of Appeals for the Third Circuit (1990-1991) and for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit (1991-1992). Judge Kavanaugh served as a law clerk to the man he has been nominated to replace, Justice Anthony M. Kennedy of the U.S. Supreme Court, during October Term 1993.

Immediately following his U.S. Supreme Court clerkship, Judge Kavanaugh served in the Office of the Solicitor General of the United States. From 1994 to 1997, and for a period of time in 1998, Kavanaugh was Associate Counsel in the Office of Independent Counsel Kenneth W. Starr. He also spent time in private law practice, as a partner at Kirkland & Ellis in Washington, D.C., from 1997 to 1998 and again from 1999 to 2001. From 2001 to 2003, he was first Associate Counsel, and then Senior Associate Counsel to the President in the George W. Bush White House. From July 2003 until May 2006, Judge Kavanaugh was Assistant to the President and Staff Secretary to the President.

President Bush nominated Judge Kavanaugh to the D.C. Circuit and on May 30, 2006, he was appointed after being confirmed by a vote of 57-36.

Key Labor and Employment Decisions

 Judge Kavanaugh’s judicial philosophy is regarded as conservative; he is a textualist and an originalist, following in the footsteps of the late Justice Antonin Scalia. He generally takes a narrow and demanding approach to employment-related lawsuits and statutory interpretation, and routinely rules in favor of employers. That said, some of his opinions written for the majority, along with his dissents, reveal a flexible and nuanced approach to discrimination claims. How will Judge Kavanaugh treat workplace law cases that come before the Supreme Court? Following are summaries of several key decisions that illustrate his approach to deciding such cases.

Corporate Governance and Internal Investigations

 Judge Kavanaugh’s opinions display a tendency to refer to the plain text of statutes and their history, especially when voicing his support for the authority of the Executive Branch. See PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 165-67 (D.C. Cir. 2018) (Kavanaugh, J., dissenting). In his PHH dissent, Judge Kavanaugh held that the structure of the Consumer Financial Protection Bureau is unconstitutional, because having only one director erodes the President’s Article II powers. Id. at 166. Judge Kavanaugh reasoned that: (1) in light of historical practice, there has never been any independent agency so unaccountable and unchecked; (2) the lack of a critical check runs the risk of abuse of power and threatens individual liberty; and (3) Presidential authority to control the Executive Branch is of great importance and is diminished by this single-director independent agency. Id. at 167.

In an earlier dissent in Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d 667, 686 (D.C. Cir. 2008), Judge Kavanaugh asserted that the Public Company Accounting Oversight Board (PCAOB), created by the Sarbanes-Oxley Act, is unconstitutional because the appointment and for-cause removal powers of the PCAOB lie with the SEC, another independent agency. Kavanaugh stated this structure unconstitutionally restricted the President’s appointment and removal powers, either directly or through an alter ego, which he said has “never before [happened] in American history.” Id.

Discrimination in the Workplace

Judge Kavanaugh frequently writes opinions in a manner designed to portray himself as giving precise meaning to statutes, and resisting the urge to expand the law or “legislate from the bench.” See, e.g., Miller v. Clinton, 687 F.3d 1332, 1358 (D.C. Cir. 2012) (Kavanaugh, J., dissenting) (denouncing the majority’s decision to apply Age Discrimination in Employment Act (ADEA) to the State Department and quoting from Antonin Scalia & Bran A. Garner, Reading Law: The Interpretation of Legal Texts).

Several of Judge Kavanaugh’s decisions suggest he construes anti-discrimination statutes in a manner that may be considered plaintiff-friendly, but there is not a sufficient sample from which to draw a definitive conclusion on this issue. In both Ortiz-Diaz v. United States HUD, 831 F.3d 488, 494 (D.C. Cir. 2016), rev’d 867 F.3d 70, 81 (D.C. Cir. 2016), and Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 579-80 (D.C. Cir. 2013), Judge Kavanaugh argued in favor of making it easier for plaintiffs to establish a prima facie case of employment discrimination. In Ortiz-Diaz, Judge Kavanaugh was part of a three-judge panel that initially affirmed a district court’s ruling that refusal to grant a lateral transfer is not an adverse employment action under Title VII. See Ortiz-Diaz, 831 F.3d at 494. The ruling prevented the plaintiff from demonstrating harm resulting from his employer’s refusal to grant him a lateral transfer away from an allegedly racist and biased supervisor who the plaintiff claimed was hurting his ability to develop and succeed professionally. Id. at 491-92. Several months later, however, that three-judge panel reversed itself sua sponte, holding that when an employer denies a lateral transfer for reasons based on race or gender or other protected grounds, that employer violates Title VII. Ortiz-Diaz, 867 F.3d. at 74-77. In both decisions, Judge Kavanaugh wrote a concurring opinion arguing in favor of expanding the definition of adverse employment action to include discriminatory refusal to grant requests for lateral transfers. Id. at 81; Ortiz-Diaz, 831 F.3d at 494. Similarly, in Ayissi-Etoh, 712 F.3d at 579-80, Judge Kavanaugh wrote a concurring opinion, arguing that a single verbal incident ought to be sufficient to establish a hostile work environment. Judge Kavanaugh opined, “[t]he test set forth by the Supreme Court is whether the alleged conduct is ‘sufficiently severe or pervasive’ — written in the disjunctive — not whether the conduct is ‘sufficiently severe and pervasive.’” Id. at 579. He continued, “in my view, being called the n-word by a supervisor — as Ayissi-Etoh alleges happened to him — suffices by itself to establish a racially hostile work environment.” Id. at 580.

Employee Benefits

Some of Judge Kavanaugh’s dissenting and concurring opinions offer insight into what his approach may mean for employers. In Priests for Life v. United States Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015), Judge Kavanaugh dissented from the denial of a rehearing en banc in a Religious Freedom Restoration Act (RFRA) challenge to the process for accommodating religious objections to the Affordable Care Act’s contraceptive mandate. Under the accommodation, the carrier still provides the services to the plan participants, but directly to those requesting them rather than the plan paying for the services as the mandate requires. The panel decision had upheld the accommodation, stating that a court is not required “simply to accept whatever beliefs a RFRA plaintiff avows—even erroneous beliefs about what a challenged regulation actually requires.” Id. at 4. Rather than join other conservative dissenters, who would have held for the religious organization agreeing that the government has no compelling interest in contraception facilitation, Kavanaugh wrote, “It is not our job to re-litigate or trim or expand Supreme Court decisions. Our job is to follow them as closely and carefully and dispassionately as we can. Doing so here, in my respectful view, leads to the conclusion that the plaintiff religious organizations should ultimately prevail on their RFRA claim, but not to the full extent that they seek.” Id. at 14.

Judge Kavanaugh’s approach to his cases is objective and literal, and he has shown a depth of understanding of ERISA, as well as an employer’s duties and responsibilities. His dedication to the text of the law or the plan document does not favor one side over the other, but rather illustrates his commitment to interpreting the language objectively before applying it to the situation.

Immigration

Judge Kavanaugh’s immigration decisions indicate a tendency to interpret the law to protect U.S. workers rather than employers who want to hire foreign nationals. For example, his dissent in Fogo de Chao (Holdings) Inc. v. U.S. Department of Homeland Security, 769 F.3d 1127 (D.C. Cir. 2014), offers a glimpse into his approach to immigration law. Fogo de Chao, a Brazilian steakhouse restaurant chain, claimed that a critical component of its success included employing genuine gaucho chefs, churrasqueiros, who “have been raised and trained in the particular culinary and festive traditions of traditional barbecues in the Rio Grande do Sul area of Southern Brazil.” Id. at 1129. Over the years, the company had brought over 200 chefs to the U.S. on L-1B visas. To qualify for an L-1B visa, the company must show that the individual has worked for the company abroad for at least one year in the prior three years and has “specialized knowledge.” The statutory definition states that an employee possesses specialized knowledge “if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company,” and the regulation followed suit. 8 U.S.C. § 1184(c)(2)(B). The U.S. Citizenship and Immigration Services (USCIS) denied Fogo de Chao’s petition, and the district court granted the government summary judgment. The D.C. Circuit reversed, holding that: (1) the regulation regarding “specialized knowledge” would not be given Chevron deference because the regulation merely mirrored the statute; (2) judicial review was not barred because the denial was not statutorily in the discretion of the Attorney General or the Secretary of Homeland Security; and (3) the agency’s denial based upon a categorical bar on culturally acquired knowledge to prove specialized knowledge was not sufficiently supported. Fogo de Chao, 769 F.3d at 1149.

Judge Kavanaugh dissented, noting that even if Chevron deference was not required, under a de novo standard of review, the agency’s decision should have been upheld. He reasoned the categorical bar on culturally acquired knowledge was correct because any other interpretation would “gut the specialized knowledge requirement and open a substantial loophole in the immigration laws.” Id. at 1152. Moreover, Judge Kavanaugh agreed with the agency that Fogo de Chao’s argument that American chefs could not be trained in a reasonable amount of time was inadequate. He noted that Fogo de Chao already employed some American chefs and “common sense tells us that the chefs who happen to be American citizens surely have the capacity to learn how to cook Brazilian steaks and perform the relevant related tasks.” Id. at 1153.

Ultimately, Judge Kavanaugh concluded that Fogo de Chao’s argument was at least in part based on their desire to cut labor costs and that “mere economic expediency does not authorize an employer to displace American workers for foreign workers.” Id. He further stated that: “By claiming that its Brazilian chefs possess ‘cultural’ knowledge and skills that cannot be learned by Americans within a reasonable time, Fogo de Chao has attempted an end-run around the carefully circumscribed specialized knowledge visa program.” Id. at 1154. Finally, in an interesting footnote, Kavanaugh pointed out that the agency could adopt a binding regulation (instead of relying on a policy memo) that would make it clear that workers such as the chefs in this case do not possess specialized knowledge under the statute ― then their decision would be entitled to Chevron deference. Id.

Judge Kavanaugh’s majority opinion in Int’l Internship Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 2013), also illustrates his inclination to protect U.S. workers from being undercut based on an employer’s economic needs. Napolitano involved an organization that sponsored a cultural exchange program that helped Asians find jobs in American schools. The exchange program applied for Q visas for these individuals. The USCIS denied several of these petitions because the individuals participating in the program were not paid. The agency interpreted the Q visa statute and regulations to require payment of wages. Id. at 987.

The plaintiff argued that unpaid interns were eligible for Q visas as long as there were comparable American workers in the program who were unpaid because the statute stated that the foreign participants “will be employed under the same wages and working conditions as domestic workers.” Id. citing 8 U.S.C. § 1101(a)(15)(Q). Judge Kavanaugh disagreed, opining that the terms included in the statute and regulations (“employed,” “wages,” “workers,” and “remuneration”), were “best read to require foreign citizens to receive wages and that those wages be equivalent to the wages of domestic workers.” Int’l Internship Program, 718 F.3d at 987.

Labor

Because Judge Kavanaugh sits in the D.C. Circuit, he has frequently been involved in cases reviewing National Labor Relations Board (NLRB) decisions, which he appears to analyze on a case-by-case basis rather than in service of an overarching judicial philosophy. Judge Kavanaugh has written several majority opinions that vacated an NLRB order. Writing for the majority in S. New Eng. Tel. Co. v. NLRB, 793 F.3d 93, 94 (D.C. Cir. 2015), Judge Kavanaugh vacated an NLRB decision that had found an employer unlawfully banned employees (who went into customer’s homes) from wearing union t-shirts that stated “Inmate” and “Prisoner of AT.” Judge Kavanaugh opened his opinion by noting: “Common sense sometimes matters in resolving legal disputes,” and criticized the Board for applying “the ‘special circumstances’ exception in an unreasonable way.” Id. at 94, 96; see also Verizon New Eng. v. NLRB, 826 F.3d 480, 483 (D.C. Cir. 2016) (granting the employer’s petition for review of an NLRB decision which had overturned a labor arbitration decision that had ruled for the employer); Venetian Casino Resort L.L.C. v. NLRB, 793 F.3d 85, 87 (D.C. Cir. 2015) (granting employer’s petition for review, finding employer had a First Amendment right to contact police regarding a union demonstration allegedly trespassing on its private property).

In addition, Judge Kavanaugh has authored several dissenting opinions in favor of employers’ arguments. Most recently, in Island Architectural Woodwork, Inc. v. NLRB,2018 U.S. App. LEXIS 16109, at *32 (D.C. Cir. June 15, 2018), he dissented from the majority opinion enforcing an NLRB order holding an employer was an alter ego of a unionized shop and thus violated the National Labor Relations Act (NLRA). Judge Kavanaugh stated that “the Board’s analysis is wholly unpersuasive.” Id. at *34. In NLRB v. CNN Am., Inc., 865 F.3d 740, 765-66 (D.C. Cir. 2017), Kavanaugh dissented in part, finding that the NLRB erred in its analysis of both the joint-employer and successor-employer issues when it found that CNN had violated the Act, stating, among other things, that he agreed with conservative Member Miscimarra’s dissent in the underlying NLRB decision. Judge Kavanaugh ended his decision bluntly, “Bottom line: In my view, the Board jumped the rails in its analysis of both the joint-employer and successor-employer issues.” Id. at 767.

Judge Kavanaugh also dissented in Agri Processor Co. v. NLRB, 514 F.3d 1, 10 (D.C. Cir. 2008), refusing to join the majority’s decision enforcing an NLRB decision that held individuals who are not legally authorized to work in the United States are nonetheless “employees” for the purposes of the NLRA (and permitted to organize and vote in Union elections involving their employer). Judge Kavanaugh’s dissenting opinion stated, “I would hold that an illegal immigrant worker is not an ‘employee’ under the NLRA for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful ‘employee’ in the United States.” Id. In Kavanaugh’s view, the case should have been remanded to the Board “to determine how a party can challenge a union election or certification upon discovering after the fact that illegal immigrant workers voted in the election and effected the outcome.” Id.; see also Midwest Div.-MMC, LLC v. NLRB, 867 F.3d 1288, 1304-05 (D.C. Cir. 2017) (dissenting from majority, stating he would hold Weingarten rights do not apply to peer-review committee interviews, noting he would vacate the Board’s order to the extent it ruled the Union was entitled to peer-review information).

However, Judge Kavanaugh has sided with the NLRB in some instances. Most recently, in Veritas Health Servs., Inc. v. NLRB, 671 F.3d 1267, 1269-70 (D.C. Cir. 2012), Kavanaugh enforced an NLRB decision that had determined that certain pro-union conduct of charge nurses (supervisors) did not taint a union election, determining the employer did not show that the Court should overturn the decision upholding the election that resulted in the union’s certification. See also New York-New York, LLC v. NLRB, 676 F.3d 193 (D.C. Cir. 2012) (finding the NLRB had been granted discretion pursuant to an earlier Circuit decision to decide whether a property owner could prohibit employees of an on-site contractor from distributing handbills on its property); Raymond F. Kravis Ctr. for the Performing Arts, Inc. v. NLRB, 550 F.3d 1183, 1186 (D.C. Cir. 2008) (enforcing Board Order holding the employer violated the NLRA when it unilaterally changed the scope of the bargaining unit and withdrew recognition from the union); United Food & Commercial Workers v. NLRB, 519 F.3d 490, 492 (D.C. Cir. 2008) (enforcing NLRB decision that held employer was required to engage in effects bargaining with the union after positions no longer constituted an appropriate bargaining unit due to technological change); E.I. du Pont de Nemours & Co. v. NLRB, 489 F.3d 1310, 1312 (D.C. Cir. 2007) (enforcing Board Order finding that employer’s refusal to provide requested information to the union precluded lawful impasse).

Workplace Privacy

Judge Kavanaugh’s dissent in Nat’l Fed’n of Fed. Employees-IAM v. Vilsack, 681 F.3d. 483 (D.C. Cir. 2012), is perhaps indicative of his stance on privacy issues. In Vilsack, the plaintiff union challenged the constitutionality of a policy of random drug testing of all employees working at the Job Corps Civilian Conversation Center (specialized residential schools for at-risk youth) run by the defendant, the Secretary of Agriculture and Chief of the U.S. Forest Service. 681 F.3d at 485. The district court granted the Secretary’s summary judgment motion, concluding that the government interest in preventing illegal drug use justified intrusion of employee privacy interests and Fourth amendment rights. Id. at 488. The D.C. Circuit Court reversed and remanded the case. Id. at 486.

The panel opinion considered the balancing of the government’s interest in a drug free work place with employee privacy interests, using the Skinner test in assessing the employees’ privacy interests, to determine both “the scope of the legitimate expectation of privacy at issue” and the “character of the intrusion that is complained of.” Id. at 490. In ruling in favor of the plaintiffs and their interest in employee privacy, the opinion emphasizes the defendant’s lack of explanation of how “general program features loosely ascribed staff responsibilities serve to undermine the reasonable expectations of privacy held by Job Corps employees” and the lack of notice of such testing, given that for over a decade employees in the same position were not tested. Id. at 493. Moreover, typically drug testing is considered permissible in high security or safety positions; however, here the Secretary defendant designated all employees to drug testing, and the court concluded the defendant’s rationale supporting “special needs” to justify drug testing all employees was too speculative. Id. at 494-95, 498.

Judge Kavanaugh’s dissent narrowly addressed the issue of drug testing government employees who work at specialized residential schools for at-risk youth, and avoided an assessment of when drug testing should or should not be permissible in the government setting in general. Id. at 499-500. In the specific context of random drug testing at a “public school” for “at-risk youth,” Kavanaugh stressed that there was no Supreme Court precedent. Id. at 500. He distinguished a case the majority relied on, Vernonia School Dist. v. Acton, 515 U.S. 646 (1995), that cautioned against “suspicionless drug testing” passing “constitutional muster” in the public school setting. In Vernonia, the public school attempted to justify “suspicionless drug testing” of teachers and other staff on the basis that in the same school, drug testing of student athletes was permitted. Judge Kavanaugh found the Secretary’s rationale supporting “special needs” to be persuasive. See Vilsack, 681 F.3d at 501. “To maintain discipline, the schools must ensure that the employees who work there do not themselves become part of the problem,” Kavanaugh stated. Id. “That is especially true when, as here, the employees are one of the few possible conduits for drugs to enter the schools.” Id.

Judge Kavanaugh emphasized that his dissenting opinion was narrowly limited to this specific factual situation. See id. at 499-500. Therefore, in this case, although Kavanaugh ultimately concluded that the government’s interest outweighed the employees’ right to privacy, it remains difficult to assess the degree to which this case signals Kavanaugh’s stance on privacy issues generally.

***

Next steps: Judge Kavanaugh’s nomination must be approved by the U.S. Senate after the Senate Judiciary Committee holds a hearing. After a hearing, the committee votes on whether to put Kavanaugh before the Senate. If the committee votes to move forward, the Senate will vote on the nomination. A majority vote of the Senate is needed to put Judge Kavanaugh on the Court.

President Trump will have the opportunity to leave a lasting mark on the federal judiciary, which currently has more than 100 vacancies pending in the U.S. District Courts and the Courts of Appeals. In addition to the selection of the current nominee and Justice Gorsuch’s appointment in April 2017, Trump may have occasion to fill another Supreme Court seat in the coming years, with Justice Ruth Bader Ginsburg at age 85 and Justice Stephen Breyer at age 79.

Jackson Lewis P.C. © 2018
For more legal news and analysis, check out the National Law Review’s Homepage.