Tag Archives: certification

Follow up: Rulings Against Sheriff Arpaio

A while back images where shown of Sheriff Arpaio, from Arizona, having 220 immigrants march in a line with shackles.  (One story here).  This story, among others, prompted lawsuits against Arpaio. The first case granted an injunction against Arpaio and the Sheriff’s Office.  The second case ruled that the Human Smuggling Act (which allowed the arrest and prosecution of immigrants).

It is interesting to point out that these decisions came before the 9th Circuit Court of Appeals decision (Oct. 8, 2013), discussed here, which held Arizona S.B. 1070 was void and preempted.

In Manuel de Jesus Ortega Melendres v. Arpaio, No. CV-07-02513-PHX-GMS (D. Ariz. Oct. 2, 2013), U.S. District Court Judge Snow granted an injunction and listed reforms in which Arpaio and the Maricopa Sheriff’s Office must comply with.  This list includes, for example:

  • Supervisors shall provide effective supervision necessary to direct and guide Deputies.  Some of these include, for example: Respond to certain arrests; confirm the accuracy and completeness of Deputies’ daily reports;and hold Deputies accountable.
  • Supervisors enforcing Immigration-Related laws will directly supervise law enforcement activities.
  • Appointment of a federal independent monitor;
  • Hiring a Community Liaison Officer who is a sworn Deputy fluent in English and Spanish; and
  • Video recorder in every patrol car to record every traffic stop.

In We are America v. Maricopa County Bd. of Supervisors, No. CIV 06-2816-PHX-RCB (Sept. 27, 2013), U.S. District Court Judge Broomfield enjoined Arizona’s Maricopa Migrant Conspiracy Policy.

Sheriff Arpaio created this policy based on the Human Smuggling Act, Ariz. Rev. Stat. 13-2319 which allowed for the arrest and prosecution of immigrants for “conspiring to transport themselves within Maricopa County.”

District Court Judge, like the reasoning of the 9th Circuit a few days later, ruled that the statute was preempted by the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.

The court also certified the class, which included “all individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. 13-2319 [Human Smuggling Act].”

via Courthouse News Service.

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Supreme Court and collective action dismissals

The Supreme Court has recently decided a collective action case that affects how the litigation process can be cut promptly by defendants.  In summary of the details below, a plaintiff loses its interest in a collective action when an offer completely satisfies the plaintiff’s claim.  Further, if the plaintiff does not move for certification, even though the lawsuit had already started, the plaintiff’s case ends if the claim is no longer alive.

What this might imply is that plaintiffs in a collective action would need to move promptly when seeking certification.  The question, however, is: would you have enough supporting evidence by then?

In Genesis Healthcare Corp. v. Symczyk, 11-1059 (2013), the Supreme Court held that a collective action (FLSA) is moot when the named plaintiff has no continuing personal interest in the outcome of the lawsuit and no motion for conditional certification has been filed.

The District Court, finding that no other individuals had joined her suit and the Rule 68 offer that was ignored fully satisfied her claim, dismissed the lawsuit for lack of subject matter jurisdiction.  The Third Circuit Court of Appeals dismissed.  However, the Supreme Court agreed with the District Court, and thus reversed the Court of Appeals’ opinion.

The Supreme Court explained that Sosna v. Iowa, 419 US 393 (1975) and United States Parole Comm’n v. Geraghty, 445 US 388 (1980), held that a class action that was erroneously denied relates back to the time of the erroneous denial — as long as the named plaintiff’s claim remains live at the time of the denial of the class certification.

The Supreme Court, here, found that the named plaintiff had not moved for conditional certification and her claim became moot.  Consequently, the relate back provision did not apply in her case.

As to the Rule 68 offer, the Supreme Court held that the purposes of a collective action would not be frustrated by the offer.  The plaintiff alleged that the Rule 68 had the effect to “pick off” the named plaintiffs before the collection action’s process had run its course.  The Supreme Court explained that in Deposit Guaranty Nat. Bank v. Roper, 445 US 326 (1980), when the Rule 68 offer did not provide complete relief, the named plaintiffs could appeal because they retained an ongoing, personal economic stake in the lawsuit.

Here, however, the named plaintiff conceded that the Rule 68 offer offered complete relief, and plaintiff asserted no continuing interest in shifting attorney’s fees and costs.

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Filed under Appellate, courts, employment, legal decision, rules, wage

Lawyer’s misconduct did not prevent class action certification

In a class action, lawyers’ conduct when contacting (or trying to contact) possible putative class members, is regulated by the court or federal statute.

In this case, the 7th Circuit Court of Appeals determined  that class counsel’s faxing of unsolicited advertisement was misconduct.  The decision rested on the question of whether the law firm bribed a third-party in order to obtain a list of the possible putative class members.  Due to a lack of evidence that the payment of $5,000 was a bribe, the court allowed the class to be certified.

I raise this case because it raises the issue of attorney misconduct.  First of all, there are across-the-states ethics rules that govern attorneys’ conduct.  You can access ethics rules governing attorneys by going to the state court’s website and looking for the Board of Professional Responsibility or ethics rules.

As the 7th Circuit Court of Appeals highlighted multiple times, the law firm’s misconduct could possibly warrant disciplinary action.  The Court of Appeals commented that litigants and attorneys should report to the relevant bar authority (the Board of Professional Responsibility) instances of attorney misconduct.  Otherwise, the court warned, unpunished and inappropriate attorney conduct will continue.

In fact, there are ethical rules that discuss the reporting of misconduct.  In Minnesota, Rule 8.3 discusses the reporting of professional misconduct.  Rule 8.3 states, in relevant part,

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Secondly, in a class action, the class representatives through their class counsel must show that the class counsel can appropriately represent the class.  In other words, the court must decide that the law firm can properly represent the entire class (which may in the hundredths).

So, if a law firm possibly engaged in misconduct, i.e. shows a lack of integrity – is the law firm’s representation proper?  The court did state that unethical conduct (regardless of whether it is prejudicial) raises “serious doubt” as to counsel’s ability to adequately represent the class.

via Courthouse News Service.

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Filed under Appellate, attorneys, courts, legal decision, Minnesota, rules, sanctions, Supreme Court

Union Decertification Case Law

The D.C. Circuit Court of Appeals, in SFO Goodnite Inn v. NLRB, ____F.3d____ (D.C. Cir. Nov. 20, 2012), enforced  a National Labor Relations Board order finding a California hotel improperly withdrew recognition from a UNITE HERE local, rejecting the hotel’s argument that it lawfully relied on anti-union petitions signed by a majority of its employees.

In the decision, the court approved the NLRB’s interpretation of Hearst.

[T]he Board has now articulated a clear line for applying the Hearst presumption of taint in “the narrow circumstance where an employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify its unilateral withdrawal of recognition from its employee’s representative.”

The Board explained that the Hearst presumption applies where the employer is directly involved in advancing a decertification petition, whereas the Master Slack test applies where the employer committed unfair labor practices unrelated to the petition that may have contributed to the erosion of support for the union.

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DC upholds challenge to Health Care Rule

In San Miguel Hosp. Corp. v. NLRB, ___F.3d___ D.C. Cir. 11/02/12, The DC Court of Appeals affirmed the NLRB’s decision to certify the Union as the sole representative of a unit that comprised professionals and non-professional employees.

The Hospital raised two main arguments.

  1. The Hospital argued that the Health Care Rule violated Section 9 of the NLRA because it endorses the extent of a union’s organization as the controlling factor in unit determination.
  2. The Hospital also argued that unit certification is improper when the unit comprises professional and non-professional employees.

The Court responded to these arguments as follows.

  1. The Court held the argument to have “zero merit.”  First, the Court explained, the administrative record makes “quite clear that the factors the Board considered in deciding upon the eight listed units included ‘uniqueness of function; training, education and licensing; wages, hours and working conditions; supervision; employee interaction; and factors relating to the collective bargaining agreement.'”  Second, the Court stated that the NLRA only requires that the extent of organization not be the controlling factor.  Therefore, the “consideration of that factor among others is entirely lawful.”
  2. Regarding the second Hospital’s argument, the Court highlighted the fact that the Hospital never challenged this issue.  The Court also stated that there is no precedent, in the NLRB or Courts, that addressed this specific issue.  As a consequence, the Court concluded that no remand was necessary since the Hospital waived any subsequent challenge.

In plain words, the DC Circuit Court of Appeals reaffirmed two main conclusions, supported by precedent.

First, that if you don’t raise a challenge below — you cannot raise a challenge in appeal.

Second, that the NLRA Section 9(c) provides that the NLRB can use the extent of the organization as a factor, as long as it is not controlling.  Since the NLRB used a plethora of factors, it was clear that it did not decide the issue solely on the extent of union organization.

What we can learn from this case is simple.  Raise all challenges in the court below to make sure you preserve these challenges in an appeal.

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Filed under Appellate, courts, labor, legal decision, NLRB, union

Federal judge strikes down part of Wisconsin union law

Federal Distrct Court Judge Conley struck down parts of the anti-union bill supported by Wisconsin Governor Walker.  The provisions that were struck were (1) requiring the re-certification of unions by a majority annually, and (2) making the payment of union dues voluntary.

The case is Wisconsin Education Ass’n Council, et. al, v. Scott Walker, et. al., 11-cv-428.  Plaintiffs (the Unions) challenged the anti-union bill (known as “Act 10”) on two grounds: Equal Protection and First Amendment. You may read the opinion here.

 

Via Federal judge strikes down part of Wisconsin union law – Yahoo! News.

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