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Appellate Practice

Dec. 2, 2016

Fowler v. Lanier and Generalist v. Specialist

Wen Fa (Pacific Legal Foundation) contends carve outs in a California labor statute violate the U.S. Constitution's bill of attainder clause by targeting agriculture giants Gerawan and Fowler Packing; Myron Moskovitz (Moskovitz Appellate Team) on the benefits of taking a generalist's approach in specialized appeals


This week we regard a pending Ninth Circuit labor law appeal with major implications for two of California's biggest agriculture employers, and we'll also explore how applying a generalist approach in the context of specialized appeals can yield advantages and results for an appellate counsel.
We'll hear first from Wen Fa, a staff attorney with the Pacific Legal Foundation. Mr. Fa submitted an amicus brief in the case of Fowler Packing et al v. Lanier, in support of the agriculture industry employer plaintiffs there, in which he argued that a recently-enacted California statute violates the U.S. Constitution's bill of attainder clause by targeting and unduly penalizing Fowler Packing and another substantial agricultural employer, Gerawan Farming. The law at issue, AB 1513, was enacted in response to a series of California rulings invalidating employment practices that, Mr. Fa says, had been long regarded by the labor community to be legal. AB 1513 provided a safe harbor provision for the many employers that, as a result of those rulings, found themselves exposed to a tremendous amount of liability, both in the form of unpaid wages but also statutory damages. The new law provided that employers could avoid the statutory damages (and attorney fees they would accrue defending suits) by timely tendering to employees any and all due wages. But, the statute did include two exceptions to that safe harbor, making it unavailable in certain instances. According to Mr. Fa, those exceptions effectively (and perhaps purposefully) target Fowler and Gerawan, depriving them of the safe harbor provision while leaving it available to most all other state employers. The exceptions, Mr. Fa says, violate the Constitution's bill of attainder clause because they act effectively like a judicial punishment against the two companies. He'll enlighten us further as to the nature and background of that constitutional provision, and as to how he imagines this case, dismissed by a federal trial court but argued in November before a Ninth Circuit panel that voiced some skepticism over the exceptions, might resolve.
Then, Myron Moskovitz, director at the Moskovitz Appellate Team, will join the podcast. Mr. Moskovitz will offer particular guidance from a recent intellectual property appeal he handled, in which he found that employing a generalist approach within the context of appeals often handled by specialists can have its benefits. Mr. Moskovitz, who has handled a broad spectrum of appellate matters, notes that many appellate jurists might lack the technical knowledge that, for instance, an IP appellate specialist takes for granted. Being aware of this dynamic, while also educating oneself in the technical details of one's appeal as much as possible, will serve an appellate attorney well, Mr. Moskovitz says. He'll also discuss his recently-published book, Moskovitz on Appeal, a comprehensive guide to all things appellate practice. In it, Mr. Moskovitz offers guidance on themes both broad and technical, advising attorneys on finding the right appeal, framing it persuasively, and presenting to an appellate panel.
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Have questions? Ideas for segments? Want to appear on the show? Email the host at <!-- Weekly Appellate Report Podcast -->


Brian Cardile

Rulings Editor, Podcast Host, 9th U.S. Circuit Court of Appeals reporter

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