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Weekly Appellate Report #21

By Brian Cardile | Sep. 16, 2016

Appellate Practice

Sep. 16, 2016

Weekly Appellate Report #21

Laura Reathaford (Venable LLP) on conflicting class action waiver jurisprudence after Morris v. Ernst & Young; Ben Feuer (Cal. App. Law Grp.) concludes our summer SCOTUS series, previewing NLRB v. SW General


This week our guests chat two vital cases, one that deepens a federal circuit split over employment class action waivers, and one that will refine the contours of the President's power to fill vacant executive posts.

We'll first hear from Laura Reathaford, a partner with Venable LLP, on the recent Ninth Circuit ruling in Morris v. Ernst & Young, an employment law matter the impact of which doubtless concerns employers - and their counsel - across California, as its holding, that mandatory class action waivers in employment contracts are unenforceable as in violation of the National Labor Relations Act, stands in direct contradiction to settled California state law, from the divisive 2014 decision in Iskanian v. CLS Transportation. The ruling deepens a federal circuit split; the Ninth Circuit joins the Seventh as holding such waivers violate the NLRA, while other circuits - the Fifth, Second, and Eighth - have held differently, making eventual US Supreme Court review nearly certain. Ms. Reathaford will portend the future of class action waivers, and analyze this ruling's impact on California employment lawyers.

Then, Ben Feuer, chairman of the California Appellate Law Group, will conclude our summer SCOTUS series, today previewing the case of NLRB v. SW General, a battle between the executive and legislative branches over the proper interpretation of a statute defining the President's power to fill vacant executive positions. With a strict interpretation of the statute at issue, the D.C. Circuit rendered invalid President Obama's 2010 appointment of Lafe Solomon as National Labor Relations Board General Counsel and; along with that appointment, also rendered invalid an NLRB complaint against the respondents. More than just the NLRB complaint at issue here, the outcome in this case will have significant impacts on just how much latitude the President has over appointments within the executive branch.

Don't forget CLE credit available for your having listened; find a link to a short true/false test below.

Brian Cardile

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

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