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U.S. Supreme Court Rulings to Benefit Employers

The Supreme Court of the United States exists to reverse the 9th U.S. Circuit Court of Appeals, as the saying goes. The highest court in the land did its duty twice to our federal court of appeals in the last couple of weeks. In both cases, the decisions will help employers and will likely result in job creation. Whether that is good probably depends upon whether you’re looking for a job or whether you are a plaintiff’s attorney.

The nation’s highest court ruled last week that there was insufficient “commonality” among the women who had worked for Wal-Mart Stores Inc. to sustain a class action lawsuit claiming sex discrimination. In Wal-Mart Stores Inc. v. Dukes, the court said that the plaintiffs failed to establish a common practice of discrimination, primarily because the company allowed individual managers to make pay and promotion decisions. So there were millions of individual hiring and promoting decisions that did not have in common any corporate direction. The court was unanimous in its decision that class status was inappropriately certified, but four justices would have allowed the plaintiffs to take another shot at class certification. The plaintiffs’ case was also hurt by their own expert, who testified that Wal-Mart had a “strong corporate culture” that made it “vulnerable” to “gender bias.” But he could not calculate whether this bias played a part in the actual hiring or promoting, conceding that it could have been a factor in 0.05 percent or 95 percent of the employment decisions.

And in AT&T Mobility LLC v. Concepcion, also penned by Justice Anton Scalia, the court ruled that the adhesion contracts that accompany most consumer transactions these days may properly require individual arbitration. This 9th Circuit reversal, also in effect, reversed the Supreme Court of California’s Discover Bank opinion, which held that adhesion contracts are often unconscionable. “It made for an excellent day,” noted John Mayers, leader of the litigation group at Mulvaney, Kahan & Barry. I suspect those on the plaintiff side don’t share the enthusiasm. The court said despite the drawbacks of these adhesion contracts, a plaintiff, unlike the plaintiff’s attorneys, makes out better in the required arbitration than a class action arbitration or class action lawsuit. In these huge cases, the plaintiffs’ attorneys get a big payday, and the consumer or employee gets comparatively little. And the losing company most likely creates fewer jobs.

Speaking of jobs, Bill Whelan joined Solomon Ward Seidenwurm & Smith LLP this month. Whelan specializes in labor and employment matters exclusively on behalf of management clients. Also, Michael Cato recently joined Solomon Ward as of counsel. Cato was formerly of Sheppard Mullin Richter & Hampton LLP. Cato represents clients in all aspects of real estate transactions, including acquisition, disposition, leasing and financing.

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Youth might have its advantages. Edward M. Cramp is the new managing partner at Duane Morris LLP. Cramp is 39, and the youngest among the 24 managing partners at Duane Morris. He has big shoes to fill: Chris Celentino, who returns to his Duane Morris practice in bankruptcy, has done a terrific job leading the firm. Celentino also has been instrumental in launching Old Town Academy, a San Diego charter school scheduled to open in the fall with 180 students.

Cynthia Morgan of Higgs Fletcher & Mack LLP has been nominated to serve on the Centre City Development Corp. board. Land use and real estate are her specialties. Morgan is a past chair of the East Village Association and currently serves on the board of that organization. Kristin Rizzo, an associate at Higgs, was selected for University of San Diego’s first “Recent Alumni Rising Star Award.” Rizzo, who received her juris doctorate in 2006, handles a variety of complex litigation matters, concentrating in employment law, health care law and personal injury.

Occasionally, there is a little ego involved in the practice of law. OK, more than occasionally. But this bit is sort of cool: Fish & Richardson P.C. announced recently that it represents 21 of the 50 “World’s Most Admired Companies,” which is compiled by Fortune magazine.

Randy C. Frisch is the president and publisher of the San Diego Business Journal. He is licensed to practice law in California, Nevada and Idaho. He can be reached at rfrisch@sdbj.com.

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