NLRB Warns Employers – Your Employee Handbook Is Probably Illegal

As an employer, you may be on a collision course with the National Labor Relations Board (“NLRB”), if like most employers, you haven’t recently updated your employee handbook.

Recently, the NLRB’s General Counsel, Richard F. Griffin, Jr., dropped a wide-reaching memorandum, which applies to all employers-regardless if their workforce is unionized-and which calls into question nearly every employer’s employee handbooks.

According to the NLRB, employers are not in compliance with the law, if your employee handbook has standard provisions, which the agency says interfere with your employees’ rights to organize, such as:

  • Don’t make disparaging comments about the company,
  • Be respectful to your managers,
  • Be respectful to your co-employees,
  • Don’t say anything bad about the company on social media, or
  • Don’t use the company’s copyrights, or its logo.

And, the NLRB’s memo goes much, much further-touching nearly every standard provision used by most employers in their employee handbooks.

Employers should take heed and update their employee handbooks immediately, to avoid the many risks of non-compliance, including exposure to costly lawsuits.

We have dissected the NLRB’s memorandum, and Alston Hunt Floyd & Ing is here to assist our clients to be fully compliant with its directives and to avoid any lawsuits.

New Law Prohibits Noncompete Clauses in Technology Contracts

Updated July 1, 2015, originally posted on June 16, 2015 by Blake Oshiro
Governor Ige signed House Bill 1090, HD2, SD2, CD1 into law as Act 158. The new law voids any “noncompete clause or a nonsolicit clause in any employment contract relating to an employee of a technology business.” The bill broadly defines “technology business” as one that “derives the majority of its gross income form sale or license of products or services resulting from its software development or information technology development, or both.” It excludes any business that is part of the broadcast industry or any telecommunications carrier. The bill defines a “noncompete clause” as one that “prohibits an employee from working in a specific geographic area for a specific period of time after leaving work with the employer.” “Nonsolicit clause” is defined as one that “prohibits an employee from soliciting employees of the employer after leaving employment with the employer.”
In passing the bill, the legislature found that restrictive covenants “impose a special hardship,” and because Hawaii’s geographic area is “unique and limited, noncompete agreements unduly restrict future employment opportunities for technology workers and have a chilling effect on the creation of new technology businesses.”
The effective date of this law is July 1, 2015 and will apply prospectively. It does not affect any existing noncompete or nonsolitication clauses in employment contracts for technology businesses prior to July 1, 2015.
Businesses that have a significant technology component to their gross income should take a good look at their employment contracts to determine if they contain these types of clauses. Because the nature of a business can change, but more over, whether technology is a “majority” of gross income, businesses should carefully review their contracts. Technology businesses will need to take a hard look at their operations and revenues if they intend to enforce any of these clauses in the future.

How To Get A Judge To Change His Mind

We have all been there. We arrive in court on a hearing and the court’s inclination is against us. Or an objection is made to the admissibility of an important item of evidence at trial and the objection is granted. How do we effectively handle such situations? While there are no guarantees and the battle to change a judge’s mind can be daunting, it is not impossible. In this effort it is often good to use as a guide three words: respect, listen and persist.

Often the effort to change a judge’s mind is undermined as a result of form rather then substance. For example, young lawyers as well as more experienced ones seem to panic when things are not going their way feeling the need to urgently make their points while talking over the judge. This is not only a sign of disrespect for the court but also the court’s staff, the court reporter. The clear message sent to the judge by such conduct is that you have neither heard nor care to hear what he has to say. Even patient judges will respond with disinterest to your argument under such circumstances. It is important to acknowledge the judge’s position, perhaps by repeating and reframing what he said, and then, and only then, suggesting why he may have overlooked an aspect of your motion or may not have considered an aspect of the applicable evidence or law. By demonstrating respect for the judge and carefully considering his position as well as demonstrating an interest in assisting the court in getting his decision right you provide yourself with a much better chance of changing his mind.

I can best illustrate persistence by an experience I had some years ago trying a case against a funeral home and mortuary. My client was the only child of his deceased mother who had passed away after a long illness. Providing a respectful burial for his mother, who raised him as a single parent, was very important to him. Unfortunately, the funeral home and mortuary did not approach their task with the same care and respect. They failed to properly communicate the size of the casket resulting in the grave not being dug wide enough for the casket. This discovery was made at the gravesite on the day of the burial. Efforts to have the funeral home take back the casket failed. Accordingly, the casket had to be stored in an unrefrigerated shed at the mortuary for a day. When the burial recommenced and the casket was removed from the shed my client saw ants emerge from the interior of the casket. He opened the casket and saw ants emerge from his mother’s nose and mouth and screamed. A family member caught all of this on videotape. When I sought to introduce the videotape at trial the judge refused agreeing with the defense that the video was staged, cumulative and more prejudicial then probative. I persisted. With every witness at the scene I sought introduction of the tape with the same result, motion denied. That was until my client’s wife testified. She poignantly described the relationship between her husband and his mother, the importance of this event to him, and how he meticulously planned for the same, as well as the horror of ants emerging from his mother’s orifices. I could detect a tear in the judge’s eye during her testimony. I renewed my motion, which was granted over the defense attorney’s objection. I won the case.

The take away is that if you are to have any chance of changing a judge’s mind it is important to remember to show respect for the judge by listening to him, demonstrating by your response that you have heard him, and then, and only then, seeking to emphasize areas of your case that he has perhaps overlooked or minimized. If you have received an adverse ruling on an important issue, you must search for new and creative ways to raise the issue again before the court by way of a motion for reconsideration or a renewal of your motion to introduce the evidence. Do not simply rehash old arguments, but consider presenting the issue in a new and compelling way calculated to capture the court’s imagination.

Takeaways From SCOTUS Marriage Equality Ruling for Hawai’i Employers

Last Friday, the United States Supreme Court, in Obergefell v. Hodges, affirmed that the Fourteenth Amendment of the Constitution requires states to apply their marriage laws equally to all couples, regardless if they are opposite-sex or same-sex. Writing for the Majority, Justice Anthony Kennedy stated, “Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”   In deciding Obergefell, the Court, 5-4, resolved a consolidated challenge from the Court of Appeals for the Sixth Circuit, which had sustained several state statutes that excluded same-sex couples from marrying.

The Court’s decision follows its decision in United States v. Windsor, which came two years ago to the same day. In Windsor, the Court held that Section 3 of the Federal Defense of Marriage Act (“DOMA”) violated the Fifth Amendment of the Constitution, to the extent that the statute’s definition of “marriage” and “spouse” deprived same-sex couples of equal protection and due process, because it only recognized the marriages of opposite-sex couples.

The Court’s decision in Obergefell, at least with respect to Hawai’i employers, has fewer implications than it may have for employers elsewhere because: (1) In 2013, following the Court’s decision in Windsor, President Obama issued an Executive Order, and the Federal Internal Revenue Service (“IRS”) and the Department of Labor (“DOL”) issued Final Rules, which expanded under federal statutes the definition of “marriage” and “spouse” to include same-sex marriages, if the state where the same-sex couple resided permitted them to marry, and then (2) In 2013, Hawai’i adopted the Hawai’i Marriage Equality Act, reforming our state’s statutes to permit same-sex couples to marry. So, since 2013, under both federal and state statutes, Hawai’i employers have been required to recognize employees’ same-sex marriages and their spouses, since they are now permitted in our state.

Nonetheless, given the Court’s recent decisions, along with subsequent developments under both federal and state statutes, it is a good time for Hawai’i employers to take stock of the flurry of changes that have occurred with respect to managing LGBT employees who have entered into same-sex marriages:

(1) Federal Contractors & Subcontractors Must Include an Equal Employment Clause in Their Contracts and Employment Policies Indicating They Do Not Discriminate on the Basis of Sexual Orientation or Gender Identity

On July 21, 2014, President Barack Obama signed Executive Order 13672, which, effective April 8, 2015, prohibits federal contractors and subcontractors from discriminating in all aspects of employment on the basis of sexual orientation or gender identity. Under the OFFCP’s Directive 2014-02, which implements President Obama’s Executive Order, federal contractors and subcontractors must take affirmative actions and revise their respective federal contracts and their employment policies to include an equal employment clause that makes clear they will not discriminate on these bases.

(2) Hawai’i Employers Must Not Discriminate Based on Sexual Orientation or Gender Identity

For Hawai’i federal contractors and subcontractors, these requirements may be less burdensome. The Hawai’i Employment Practices Act already prohibits our state’s employers from discriminating on these bases. All Hawai’i employers should ensure that their employment policies are up to date and make clear that they do not discriminate on the basis of sexual orientation or gender identity, and that their workplace posters are up to date, to reflect this requirement.

(3) For Federal/State Tax & ERISA Benefits, Employers Must Be Inclusive of Same-Sex Marriages

On August 29, 2013, the IRS issued Revenue Ruling 2013-17, adopting a broader interpretation of what constitutes “marriage.”  As of September 16, 2013, the IRS Revenue Ruling says for federal tax purposes, including the Employee Retirement Income Security Act of 1974 (“ERISA”), recognition of a couple’s “marriage” will be consistent with what is permitted under the state’s laws where they wed; so for federal purposes, if the state’s law where the couple wed recognizes a same-sex marriage, for federal purposes the “marriage” will also be recognized. However, the IRS Ruling also clarified that for federal purposes, it would not recognize “civil unions,” regardless of whether an applicable state law permitted the sanctioning of the “civil union.”

Per the Court’s decision in Obergefell, though, employers should note and look for possible changes, because the IRS Revenue Ruling will likely be expanded to include all employees’ same-sex marriages, regardless of whether the state law where they wed recognizes such a marriage.

For Hawai’i employers, the IRS Revenue Ruling has important implications with respect to managing employees’ taxable benefits-employers must recognize employees’ same-sex marriages, and their respective spouses, for such purposes. For example, an employer should not consider benefits provided to an employee’s same-sex spouse as taxable income to the employee, and employees should be permitted to pay for their same-sex spouse’s benefits on a pre-tax basis, if applicable.

Similarly, for Hawai’i tax law purposes, employers should also recognize an employee’s same-sex spouse, for any such purposes.

(4) Employers Must Revise Employee Benefits Plans to Be Inclusive of Same-Sex Marriages

Per federal and state law, employers should closely review other employee benefit plans to determine whether they are inclusive of the new definition of “marriage” and “spouse.”  This definition impacts nearly every facet of an employers’ employee benefit plan administration, including:

  • Qualified Retirement Plans – For purposes of a Qualified Retirement Plan, under qualified plan distribution options and any required spousal consent rules there under, an employee’s “spouse” now includes a same-sex spouse.
  • COBRA – Under COBRA, after a loss of coverage due to a qualifying event, an employee’s same-sex spouse must be given the opportunity to elect to continue their group health plan coverage.       Additionally, under COBRA, an employee’s same-sex spouse can be considered a “qualified beneficiary,” which means that he/she must be provided formal COBRA notices and the opportunity to continue health coverage after a COBRA “qualifying event.”
  • HIPAA – The special enrollment rules for newly acquired employees’ spouses now extend to new same-sex spouses.  It remains unclear whether the Supreme Court’s decisions (or Revenue Ruling 2013-17) should be considered a special enrollment event.
  • Flexible Spending Accounts (“FSA’s) – Both employee health FSA’s and dependent care FSA’s will use the new definition of an employee “spouse” to determine whether expenses are reimbursable from an employee’s account.
  • Health Savings Accounts (“HAS’s”) – Under a Health Savings Account, the annual contribution limits for married couples now apply to same-sex couples.

 (5) Under FMLA and HFLA, Employers Should Grant Employees Leave to Tend to Same-Sex Spouses

The Federal DOL issued a Final Rule on February 25, 2015 revising the regulatory definition of “spouse” under the Family and Medical Leave Act of 1993 (“FMLA”). FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

Effective March 27, 2015, the Final Rule amends the regulatory definition of “spouse” under the FMLA so that eligible employees in same-sex marriages will be able to take FMLA leave to care for their spouse, regardless of where they live. Essentially, under the FMLA regulations, the DOL moved from a “state of residence” rule to a “place of celebration” rule for the definition of “spouse.” That is, the Final Rule looks to the law of the place in which the employee’s marriage was entered into, as opposed to the law of the state in which the employee resides.

However, as with the IRS Revenue Ruling, employers should monitor the DOL’s Final Rule here, because it will likely be expanded to include all employees’ same-sex spouses, regardless of the applicable state law where the celebrated their marriage.

Under the Hawai’i Family and Medical Leave, the regulatory definition for “spouse” also now includes an employee’s same-sex spouse.

(6) Employers Should Not Segregate Facilities for LGBT Employees &, If Facilities Permit, Employers Should Consider Gender-Neutral Restrooms

Finally, although not related to the Court’s decisions on marriage equality and subsequent developments under federal and state law, the federal government has also provided employers some guidance on managing LGBT employees with respect to facilities. President’s Obama’s Executive Order 13672 and the subsequent OFFCP Directive directed employers to refrain from segregating work facilities, based on employees’ sexual orientation or gender identity. And, on June 8, 2015, the Federal DOL issued guidance for employers on what are best practices for accommodating employees who are transgender with respect to providing access to restrooms. Where an employer’s facilities permit, employers are not required to but should consider providing employees either (1) use of multiple-occupant, gender-neutral restrooms with lockable single occupant stalls, or (2) single-occupancy gender-neutral facilities.

 

 

 

 

 

SCOTUS ACA Decision: A Lesson in Context

A trick I learned in law school is that if you want to understand a statute, look to the introduction of a Supreme Court case interpreting it.  The SCOTUS decision today for King v. Burwell is a perfect example.

The Court ruled that the ACA may provide nationwide tax subsidies in all states – not just those running their own exchange.  The four words at issue, providing subsidies for exchanges “established by the State,” must be read within the context of the overall statutory scheme, and cannot be read in isolation to exclude tax subsidies for states using the federal exchange (healthcare.gov).

The issue of context was key, and the Court certainly did not shy away from it.  By the second page, the opinion cites as far back as the 1990s.  Not only did the Court readily look to other provisions and sections of the statute;  the majority considered the political and legislative context of healthcare law dating back decades.

Who knew the Court would cast such a large net over the “context” it would consider.

As the first section of the decision explains, the ACA “grew out of a long history of failed health insurance reform.”  The introductory paragraphs outline the trials and tribulations of healthcare reform attempts in several states from the 1990s through the final enactment of the ACA.

To understand the ACA in a nutshell, and the King v. Burwell case, imagine three “interlocking reforms” intended to work together to prop it up:
(1) insurance market regulations, including guaranteed issue and community rating requirements (insurers must cover everyone with no higher premiums based on health or preexisting conditions);
(2) coverage mandate (everyone must buy insurance or pay a penalty); and
(3) more affordable premiums via refundable tax credits to certain individuals so they may purchase insurance through an exchange (the subsidies).

The third prong was the focus of King, and SCOTUS left it intact.  You may recognize the second prong as well, which was the focus of the Court’s high-profile decision in 2012, which was also left (largely) intact.

The majority today held that although the phrase “established by the State under [Section 18031]” may not seem ambiguous if read in isolation, when it’s read in the larger context of the ACA, the Court “could not conclude that [this phrase] is unambiguous.”  Given this “ambiguity,” the majority turned to the broader structure of the ACA to determine the appropriate meaning.  That meaning—as interpreted by the majority—results in today’s holding that tax subsidies are available to individuals in states that have a federal exchange, just like states with their own exchanges.

The three dissenters were not convinced.  Justice Scalia accused the majority of “rewriting the law under the pretense of interpreting it” and performing “somersaults of statutory interpretation.”  He argued that the decision resembles the kind of judicial legislating that courts abhor, and cleverly quipped that, because the Court has been called upon repeatedly to interpret the ACA, perhaps we should start calling it “SCOTUScare.”

In direct response, the majority concluded by acknowledging that the Court’s job is not to write the law, but rather “to say what the law is” (citing back to the seminal Marbury v. Madison case) – which the majority conceded “is easier in some cases than in others.”  This is especially true here, with both sides agreeing that the statute was hardly an example of artful drafting.

In the last paragraph of the opinion, Chief Justice Roberts has the final word:

[I]n every case we must respect the role of the Legislature, and take care not to undo what it has done.  A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.  If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

Whichever side you tend to agree with, I would wager a fortune that King v. Burwell will now be required reading in every health law class across the country; not only for its explanation of the ACA, but for the idea that “meaning,” really, can be whatever you can make work in context.

The Upcoming SCOTUS ACA Decision in Four Plain Words

Any day now, the U.S. Supreme Court will issue its decision in King v. Burwell. This case has become known as the latest “Obamacare” case, with media outlets hanging the fate of the Affordable Care Act (ACA) in the balance.

So what is this case really about? SCOTUSblog, a blog written by lawyers, law professors, and law students about the Supreme Court of the United States frames the “issue” in a way that will put your brain in a twist:

Whether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the Patient Protection and Affordable Care Act.

But this complicated description is deceiving: King is actually alarmingly simple. It turns upon four words in the ACA.

Here is the background in plain terms. As part of the ACA’s attempt to make healthcare more affordable, the federal government offers subsidies for the cost of healthcare in a variety of ways. One form of subsidy is provided to individuals who purchase their health insurance via exchanges – the marketplaces in which insurers compete and individuals select their plans. The subsidies make monthly payments more affordable for the individual purchasing the insurance.

There are two types of exchanges. Some states run their own exchanges. Other states opted into the federal exchange (healthcare.gov), instead of setting up their own.

The problem – and the beating heart of the case – is that the ACA section on subsidies only refers to exchanges “established by the State.”

The Petitioners argue that this phrase excludes the federal exchange, and the thirty-or-so states that opted into it. They argue that the four words must be interpreted strictly as written: that individuals purchasing insurance through the federal exchange are not eligible for subsidies. If the Supreme Court accepts their interpretation, it will compromise subsidies in states using the federal exchange, which is no small number – millions of people would be affected.

The government argues that the subsidy provision was intended to apply to both types of exchanges. At oral argument, Solicitor General Don Verrilli pointed to other provisions of the plan to support his argument that Congress intended subsidies to be available in every state. He argued that to read the four words in a way that excludes the federal exchange would revoke the promise of affordable care for all the individuals on that exchange, a result which Congress could not have intended. He argued that the four words cannot be read in isolation, but rather must be read in context.

The case therefore turns on statutory interpretation: should we apply the unambiguous language as written, or look at context and enforce the ACA the way Congress seems to have intended? The law never likes to look outside the four corners of a statute when its language is clear; but at the same time, it is well-established that enforcement of a law should be in line with legislative intent.

At oral argument, Justice Elena Kagan suggested that indeed, Congress was unclear. In fact, she said, they were so unclear that it took a year and a half for anyone to notice the problem presented by these four words. That includes Congress.

For some, that might raise worry: how many other laws contain latent four-word phrases just waiting to spring a challenge to their validity? Stay tuned for the decision, likely to come down in the next few weeks.

Proposed Regs Put Teeth Into Fair Pay and Safe Workplaces EO

In May, the U.S. Department of Labor issued proposed guidance to assist federal contractors and contracting agencies to implement the requirements of Executive Order 13673, Fair Pay and Safe Workplaces, which was signed by President Obama on July 31, 2014. The Federal Acquisition Regulatory Council (FAR Council) is also issuing proposed regulations integrating the EO’s requirements, and the USDOL’s guidance into existing procurement rules. The rule would add FAR Subpart 22.20, Fair Pay and Safe Workplaces.

The EO applies to federal contracts over $500,000 and requires existing and prospective federal contractors to disclose labor law violations. Prime contractors must obtain the same disclosures for most subcontracts over $500,000. Although most federal contractors will only have to attest that they comply with laws providing basic workplace protections, contracting officers will be required to consider the disclosures in making contract awards and when making contractor responsibility determinations.

The EO requires that contractors’ employees be given the necessary information each pay period to verify the accuracy of their paycheck. It also prohibits large federal contractors from requiring pre-dispute arbitration agreements covering sexual assault of workers or civil rights violations. Both the FAR Council’s proposed regulations and the USDOL’s proposed guidance will be published in the Federal Register, followed by a 60-day public comment period.

Key Takeaways From SCOTUS Abercrombie Decision

Yesterday, the Supreme Court released its much-anticipated decision in EEOC v. Abercrombie & Fitch Stores, Inc., a case raising issues about the extent of an employer’s duty to accommodate religious beliefs and practices. The Court’s decision, (8-1), was penned by Justice Scalia, with Justice Alito concurring, and Justice Thomas concurring in part and dissenting in part.

The Tenth Circuit had granted Abercrombie’s Motion for Summary Judgment in a Complaint, originally filed in 2008 by the EEOC on behalf of Samantha Elauf, a Muslim who had applied to the clothing retailer for a sales associate position, but who was rejected following an interview in which she wore a hijab. Abercrombie had an otherwise neutral dress/grooming policy at the time which applied to all employees, which it called its “look policy” and which prohibited head-coverings (Abercrombie has since changed the policy). During Elauf’s interview, the interviewer had jotted in his notes that she would not be able to comply with the company’s policy, even though he had not asked her if she would be able to or if she would otherwise require accommodation.

The Tenth Circuit agreed with Abercrombie, which argued that Elauf’s disparate-treatment claim must fail, because it had no actual knowledge that due to her religion and her religious dress, that she would or would not be able to conform with the policy, or if she would or would not need accommodation. Abercrombie essentially suggested that, in the employment screening process, it was not Abercrombie’s but Elauf’s responsibility to address any required accommodation. Elauf conversely argued that her claim must prevail, because Abercrombie’s decision was motivated by its belief that she would not be able to conform to the policy, and therefore the company should have confirmed if she would be able or unable to do so and if she needed accommodation.

The Court reversed the Tenth Circuit, rejecting Abercrombie’s contentions and finding that, under Title VII, to prevail in a disparate-treatment claim, an applicant need not show that the employer had knowledge of his/her actual need for accommodation-but rather only that the employer’s decision was motivated by his/her need for accommodation. As Justice Scalia emphasized, “Motive and knowledge are separate concepts . . .[A]n employer who acts with the motive of avoiding accommodation may violate [the law] even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

The Court remanded the case back to the Tenth Circuit for further consideration pursuant to its guidance.

  • The Court’s decision reinforces the EEOC’s Guidance on “Religious Dress and Grooming in the Workplace,” issued March 2014.
  • Employers must reasonably accommodate an employee’s sincerely-held religious beliefs, including his or her religious dress and grooming practices, as long as the accommodation does not pose an undue hardship.
  • The Court’s decision makes clear that under Title VII, a claimant must show that the need for accommodation was a “motivating factor” in the employer’s adverse decision.
  • Employers must avoid making an employment decision against an employee or applicant which is motivated by the actual knowledge or mere assumption that to conform to job requirements, he/she may need accommodation. Rather, the employer should engage the employee or applicant in a conversation to inquire what if any accommodation is needed and to assess the reasonableness of any proposed accommodation.

Practice Tips on Preliminary Injunction Appeals in the Ninth Circuit Court of Appeals

The U.S. code permits a party to take an interlocutory appeal as of right from an order granting, continuing, modifying, refusing, or dissolving a preliminary injunction. 28 U.S.C. § 1292(a). The Ninth Circuit Rules provide that preliminary injunction appeals are given priority over appeals of other civil cases. Circuit Rule 34-3. This raises a number of questions, such as: How tight is the briefing schedule? Is there any way to get an extension? Is faster relief available if the issue is particularly urgent? How long will it take to decide the appeal?

Briefing Schedule. The Circuit Rules provide for an automatically expedited briefing schedule for preliminary injunction appeals. Within 28 days of the docketing in the district court of a notice of appeal, the opening brief and appellant’s excerpts of the record are due. The answering brief and supplemental excerpts of the record are due 28 days later, and the reply 14 days after the answering brief. Circuit Rule 3-3. In most cases, within a few days of the filing of the notice of appeal the clerk’s office will issue an order setting forth the specific due dates for briefs, and the order will track the schedule set forth in Circuit Rule 3-3.

Extensions. It can be difficult to obtain extensions over the objections of other parties. The automatic stream-lined extension process is not available for preliminary injunction appeals. Circuit Rule 31-2.2. Nonetheless, as a practical matter, the clerk will often grant short extensions of 14 days or less upon a motion showing good cause. The rules require the brief to be filed even if a motion for an extension is pending, so it is very important to request an extension as soon as a party knows one is needed.

One other often-overlooked means of obtaining an extension is through Circuit Rule 28-4. That Rule allows multiple parties to obtain a 21-day extension and an enlargement of five pages or 1,400 words where they are separately represented and file a joint brief. The granting of that request in non-injunction cases is typically administrative and done by the clerk’s office within a day of the filing of a Notice of Joint Brief (Ninth Circuit Form 7). It is not clear under the rules whether a Circuit Rule 28-4 extension is available in preliminary injunction appeals. On one hand, the rule says it is not available in “expedited” appeals. On the other hand, unlike the rule for streamlined extensions, which explicitly carves out both expedited appeals and preliminary injunction appeals, there is no carve-out in Rule 28-4 for preliminary injunction appeals. There are also a number of examples of the clerk’s office quickly granting Rule 28-4 extensions in preliminary injunction appeals. Often it will therefore make sense to simply file the Notice of Joint Brief, as the clerk will likely either quickly grant the extension, or deny it with little harm done for trying.

Duration. Without an additional motion to expedite, a preliminary injunction appeal will likely take at least five months from filing to oral argument. For example, there are four preliminary injunction appeals set for oral argument on the Court’s May 2015 calendar. Three were filed in November 2014 and one in October 2014. In each of the four appeals, oral argument was set for at least three months after briefing closed.

Expediting. It is possible to further expedite preliminary injunction appeals by employing the Court’s rules on expediting appeals and on emergency and urgent motions. Circuit Rules 27-3 and 27-12. Good cause must be shown to expedite an appeal, either in the form of irreparable harm or that the appeal may become moot.

Stay. It is also possible to obtain a stay of the appealed order pending appeal or an injunction pending appeal, though those requests must typically first be made in the district court. Although the standards for obtaining such relief are similar to those to obtain a preliminary injunction in the first place, in practice a party seeking to stay a preliminary injunction or obtain an injunction while an appeal is pending will likely have to show a both a substantial likelihood of success on the merits and make strong showing of irreparable harm. Occasionally when a party requests a stay or an injunction pending appeal, the Court will refuse and instead sua sponte expedite the appeal.

Mootness. One other thing should be kept in mind regarding preliminary injunction appeals. The appeals are mooted when the district court enters a permanent injunction or renders a final judgment in the case. Preliminary injunction appeals often proceed such that briefing is done within two or three months, but oral argument and a decision then take at minimum another three months. Therefore, if the district court appears likely to issue a final order or permanent injunction within six months after the preliminary injunction order, an appeal of the preliminary injunction ruling may prove an exercise in futility.

A Tale of Two Cities: Honolulu and San Francisco

This portion of the post was originally published in Commercial Business Litigation Spring 2015 Newsletter, Litigation Section, American Bar Association, Volume 16, Number 3, 2015 @ 2015 by the American Bar Association. Read the entire piece in the PDF link below.

For the first nine years of my career in private practice, I was a litigation associate and then a partner in the San Francisco office of Kirkland & Ellis LLP. Last year, I made a large change and moved to Hawai`i for family reasons. I’m now a litigator at Alston Hunt Floyd & Ing, one of Hawai`i’s top law firms. One of the most fascinating aspects of this change was seeing the radically different legal markets in a huge versus midsized U.S. metropolitan area.

One difference that immediately struck me was the level of experience and age of my colleagues at the top firms in Hawai`i. I graduated law school in 2004, and when I left Kirkland I considered myself one of the more senior attorneys both in San Francisco and the firm generally. I did not have the impression that this was unique to Kirkland. Among the top “Big Law” firms in the United States, it seemed like an attorney with 10 years of experience would be at least in the top half of the firm’s attorneys in the number of years out of law school. Practicing in Hawai`i, however, I learned that among the top firms an attorney with 11 years of experience is still considered young.

Until recently, my theory about the difference in the amount of legal experience between Hawai`i firms and Big Law firms was a qualitative observation. So I decided to look at data and see if what I thought I was seeing was correct, and if so, try to explain why this distinction exists. I determined that I was right. The median attorney at one of the largest four law firms in Hawai`i has more than twice the years of experience as the median attorney at the four Am Law 100 firms I studied. Below I discuss some of the interesting statistics I found. I have some theories, which I also discuss below, as to why the market has produced such a difference.

Click on the link below to read the complete analysis as published in the ABA’s Spring Newsletter.

A Tale of Two Cities ABA Article