2018 Convention/Legal Forum. Federal Courts Update: Civil Attorney Panel

Transcription

1 2018 Convention/Legal Forum Federal Courts Update: Civil Attorney Panel 1.5 General CLE Hours August 22 August 24, 2018 Columbus

2 Speaker Biographies The Honorable Sharon L. Ovington U.S. District Court Southern District of Ohio Dayton, Ohio Magistrate Judge Ovington received her BA, cum laude, from the University of Cincinnati and her JD from the University of Dayton School of Law. She served as an assistant county prosecutor in the Montgomery County Prosecutor s Office for eight years and handled misdemeanor felony prosecutions, representation of Montgomery County Officials in civil litigation, and did approximately two years of work in the appellate division. Magistrate Judge Ovington then served as a referee in the Montgomery County Common Pleas Court. Her work there involved a total of more than 400 civil cases addressing a wide variety of issues under Ohio law. Magistrate Judge Ovington graduated from the Harvard Negotiation Project in 1991 and afterward contributed to the formation of the Common Pleas Court s Alternative Dispute Resolution Program. A year later, she entered into private practice as an associate with Bieser, Greer & Landis, where she worked in the area of general commercial litigation. Then, from 1995 until her current appointment, she was a partner with the firm Gregor & Ovington and focused her practice on general civil litigation, misdemeanor and felony defense litigation, and death penalty and habeas corpus litigation. Magistrate Judge Ovington was sworn in as a U.S. Magistrate Judge for the Southern District of Ohio, Western Division in October She was the 1992 recipient of an Outstanding Lawyer Award for her support of the Greater Dayton Volunteer Project. For additional information, please visit Fred G. Pressley Jr. Porter Wright Morris & Arthur LLP Columbus, Ohio Mr. Pressley received his BA, cum laude, from Union College and his JD from Northwestern University School of Law. He is a member of the American Bar Association (Labor and Employment Law Section) and the Ohio State Bar Association and a Fellow of the College of Labor and Employment Lawyers. Mr. Pressley is a partner of his firm and chairs the firm s Labor and Employment Department. For more than 30 years, he successfully has represented clients in employment discrimination litigation, union avoidance campaigns, collective bargaining, and wage and hour matters around the country. Mr. Pressley has helped clients avoid employee-relations difficulties by providing proactive advice and counsel on the day-to-day issues that arise during the course of an employment relationship. He regularly represents employer interests in employment discrimination, wage and hour, and contract-based litigation claims in both state and federal court and before various administrative agencies. In the employment discrimination and wrongful discharge arena, Mr. Pressley s representation encompasses such common-law claims as breach of contract and public policy violations, as well as claims under employment statutes, including Title VII, ADA, ADEA, FMLA, FLSA, and many other local, State, and federal laws and regulations. In addition, he routinely represents employers facing union organizing campaigns and provides advice and advocacy on union avoidance, bargaining-unit composition, and representational proceedings. Mr. Pressley also works closely with unionized employers in connection with unfair labor practice charges before the NLRB, grievance representation, collective bargaining agreement negotiations, strike readiness activities, and so-called hybrid 301 actions. He is recognized in The Best Lawyers in America, Ohio Super Lawyers, and Chambers USA. For additional information, please visit The Honorable Jack Zouhary U.S. District Court, Northern District of Ohio Toledo, Ohio Judge Zouhary graduated cum laude from Dartmouth College and received his law degree from The University of Toledo College of Law, where he was an Associate Editor of the Law Review. He was in private practice with RCO Law until 2000, when he became Senior VP and General Counsel for SE Johnson Companies. Judge Zouhary was appointed by the Ohio Governor to the Lucas County Common Pleas Court in March 2005 and was nominated by the President to the Federal District Court in December 2005, with unanimous Senate confirmation in March He serves as a visiting district court judge in several states and sits by designation on the federal appellate court. Judge Zouhary is a Fellow of the American College of Trial Lawyers (ACTL) and serves on the Standing Committee on Rules of Practice and Procedure of the Judicial Conference and on the Advisory Board of the Institute for the Advancement of the American Legal System (IAALS). For additional information, please visit

3 Chapter 1: Key Employment Law Decisions by the U.S. Supreme Court and the Sixth Circuit Fred G. Pressley Jr., Esq. Porter Wright Morris & Arthur LLP Cincinnati, Ohio Table of Contents I. Employment Discrimination... 1 A. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc... 1 B. Mosby-Meachem v. Memphis Light, Gas, & Water Division C. Masterpiece Cakeshop v. Colorado Human Rights Comm n II. Wage and Hour... 3 A. Pittington v. Great Smoky Mountain Lumberjack Feud B. Encino Motorcars, LLC v. Navarro C. Stein v. hhgregg, Inc III. Labor... 4 A. Janus v. AFSCME B. Epic Sys. Corp. v. Lewis C. CNH Indus. N.V. v. Reese D. Watkins v. Honeywell Int l, Inc PowerPoint Presentation... 7 Key Employment Law Decisions i

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5 Chapter 1: Key Employment Law Decisions by the U.S. Supreme Court and the Sixth Circuit Fred G. Pressley Jr., Esq. Porter Wright Morris & Arthur LLP Cincinnati, Ohio I. Employment Discrimination A. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. The U.S. Court of Appeals for the Sixth Circuit held that discrimination on the basis of transgender status is necessarily discrimination on the basis of sex and therefore prohibited under Title VII of the 1964 Civil Rights Act. The court found that because Title VII protects against sex stereotyping and transgender discrimination is based on the non-conformance of an individual s gender identity and appearance with sex-based norms or expectations, discrimination because of an individual s transgender status is always based on gender stereotypes: the stereotype that individuals will conform their appearance and behavior whether their dress, the name they use, or other ways they present themselves to the sex assigned them at birth. Thus, it is impossible to fire an employee based on that employee s status as a transgender person without being motivated, at least in part, by the employee s sex. The Sixth Circuit also rejected the funeral home s argument that the Religious Freedom Restoration Act (RFRA) precluded enforcement of Title VII in this case. The RFRA prohibits the government from substantially burden[ing] a person s exercise of religion even if the burden results from a rule of general applicability, unless the government demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The court found that neither of the burdens alleged by the funeral home in connection with allowing Stephens to present as female namely, that it would often create distractions for the deceased s loved ones and would force the Key Employment Law Decisions 1.1

6 1.2 Federal Courts Update Funeral Home to violate Rost s faith, which in turn would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people were substantial within the meaning of RFRA. B. Mosby-Meachem v. Memphis Light, Gas, & Water Division. The Sixth Circuit affirmed a jury verdict that the defendant violated the American with Disabilities Act (ADA) by not allowing Andrea Mosby-Meachem, an in-house attorney, to telework while she was on doctor-ordered bed rest during the final 10 weeks of her pregnancy. Although the defendant contended that in-person attendance was essential for effective job performance, Mosby-Meachem presented contrary evidence. For example, some functions listed in her job description, like taking depositions, could not be performed at home and she had never performed those functions during the eight years she had worked for the defendant. The court distinguished this case from its prior decision in EEOC v. Ford Motor Co., where it rejected a resale buyer s claim that the defendant violated the ADA by not allowing her to telework. In Ford, the plaintiff asked to work off-site up to four days a week for an indefinite period and on an indeterminate schedule, and there was evidence that she had a history of unsatisfactory job performance. However, Mosby-Meachem wanted to telework for a specific 10-week period, and she had previously worked from home without issue. C. Masterpiece Cakeshop v. Colorado Human Rights Comm n. A baker in Lakewood, Colorado refused to provide a wedding cake to a gay couple based on the baker owner s religious beliefs. The Colorado Civil Rights Commission, evaluating the case under Colorado s anti-discrimination law, found that the baker discriminated against the couple. Following appeals within the state that affirmed the Commission s decision, the baker took the case to the Supreme Court. The Supreme Court reversed the Commission s decision but avoided making a broad ruling on the intersection of anti-discrimination laws and the Free Exercise Clause. The opinion stated that although a baker might have his right to the free exercise of his religion limited by generally applicable laws, a State decision in an adjudication in which religious hostility on the part of the State itself is a factor violates the State s obligation of religious neutrality under the Free Exercise Clause. The Court held the Commission s review of the baker s case exhibited hostility towards his religious views. The Commission compared Phillips religious beliefs to defense of slavery or the Holocaust. Justice Kennedy found such comparisons

7 inappropriate for a Commission charged with the... responsibility of fair and neutral enforcement of Colorado s anti-discrimination law. II. Wage and Hour A. Pittington v. Great Smoky Mountain Lumberjack Feud. The Sixth Circuit remanded a Title VII retaliation case for a trial on back pay, holding that the winning plaintiff was conclusively entitled to a greater recovery. The plaintiff worked for a theatre company. After supporting his wife s claim of sex harassment (she also worked for the company), he was demoted, had his hours cut, was segregated from his coworkers, denied an accommodation for his swollen leg, and ultimately fired. A jury found the employer liable for retaliation under Title VII but declined to award the plaintiff any compensatory or punitive damages. Instead, he was only awarded $10,000 in back pay. On post-trial motions, the district court denied a new trial on damages. The plaintiff appealed to the Sixth Circuit. On appeal, the Sixth Circuit remanded for further proceedings, holding that the district court erred by placing the burden of proof on the plaintiff to show he mitigated his damages. B. Encino Motorcars, LLC v. Navarro. The Supreme Court held that service advisors at an auto dealership are exempt from the Fair Labor Standards Act s (FLSA) overtime pay requirement. Most importantly, the Court also rejected the Ninth Circuit s holding and Department of Labor policy that FLSA exemptions should be construed narrowly. Instead, courts should apply a fairness test to determine whether a particular job is covered under the exempt classifications of the Act. According to the majority, courts interpreting the FLSA should construe the exemptions fairly because the FLSA gives no textual indication that its exemptions should be construed otherwise. This means that courts are now permitted to interpret FLSA exemptions more broadly than before, potentially leading to fewer employees being entitled to overtime under the FLSA. C. Stein v. hhgregg, Inc. The Sixth Circuit held hhgregg s practice of paying at least minimum wage to commissioned employees when earned commissions fell short of minimum wage during a given pay period and then later deducting that amount if the employee made more than minimum wage in the future, did not violate the FLSA. hhgregg s retail employees are paid on a commission-only basis. If the employees do not sell enough products to meet minimum-wage requirements in a given week, hhgregg advances a recoverable draw against future Key Employment Law Decisions 1.3

8 commissions to the employees to bring their wages up to minimum wage. If an employee later makes more than minimum wage in a work week, hhgregg will deduct the amount of previous draws from the employee s paycheck. Current and former employees sued hhgregg, claiming that the recoupment of draw advances from later paychecks constituted an unlawful kick back of wages in violation of the FLSA s requirement that minimum wages be paid free and clear without condition. Adopting the DOL s position, the court concluded that recouping draws from later paychecks did not constitute an unlawful kick-back. The court reasoned that although the FLSA prohibits employers from demanding that employees return wages already delivered, hhgregg s practice does not violate the anti-kickback FLSA regulations because hhgregg employees keep all draws received from the company in the paycheck in which the draw is received. If and when the employee makes more than minimum wage, hhgregg deducts draws from wages before they are delivered to the employee. Therefore, hhgregg does not receive a kick-back from delivered wages. The court, however, came to a different conclusion with respect to the provision in hhgregg s compensation plan requiring that terminated employees repay unearned draw balances after termination. The court distinguished the preand post-termination recovery on their characterization of the post-termination recovery as a repayment of already earned and paid wages whereas they construed the pre-termination recovery as merely an offset against future unpaid and unearned commissions. III. Labor A. Janus v. AFSCME. 1.4 Federal Courts Update In a 5-4 decision, the Supreme Court held that it was unconstitutional to allow public employee unions to require collective bargaining fees from workers who choose not to join the union. Writing for the majority, Justice Alito wrote that public sector unions fair share fees violate the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. The ruling in this case overturns precedent established in a 1977 Supreme Court decision, Abood v. Detroit Board of Education, where the Court allowed the collection of fees from union-nonmembers for contract related costs, excluding lobbying and political expenses. The majority in Janus held that Abood was poorly reasoned and an anomaly in... First Amendment jurisprudence. In a dissent joined by Justices Breyer and Ginsburg, Justice Kagan warned that the Court s ruling in Janus will have large-scale consequences. For example, Justice Kagan stated, Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of

9 managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways. B. Epic Sys. Corp. v. Lewis. The Supreme Court decided how two federal laws the NLRA and the FAA relate to whether employment contracts can legally bar employees from collective arbitration. In a 5-4 decision issued in May 2018, the Court ruled that arbitration agreements requiring individual arbitration (as opposed to collective action) are enforceable under the FAA, regardless of allowances set out within the NLRA. C. CNH Indus. N.V. v. Reese. The Supreme Court held in a per curiam opinion that collective bargaining agreements are to be interpreted according to ordinary principles of contract law. CNH Industrial N.V. and CNH Industrial America LLC agreed to a collective bargaining agreement in 1998, providing health benefits under a group benefit plan to certain employees who retired under the pension plan. The agreement expired by its terms in May At that time, a class of CNH retirees and surviving spouses filed a lawsuit seeking a declaration that their health care benefits vested for life. The case made its way to the Sixth Circuit, where the court held that the CBA was ambiguous, and therefore the court could rely on extrinsic evidence in interpreting the contract. In a per curiam opinion, the Supreme Court reversed, holding that a contract is not ambiguous unless it is subject to more than one reasonable interpretation. The Court noted that no other court of appeals would find ambiguity in this case, underscoring how the Sixth Circuit s decision deviated from ordinary principles of contract law. The Court found the case straightforward, holding that the only reasonable interpretation of the 1998 agreement is that the health care benefits expired when the CBA expired in May D. Watkins v. Honeywell Int l, Inc. Honeywell operated a manufacturing plant in Fostoria, Ohio for almost 40 years. Many union workers, including Ann Watkins and James Ulicny, spent most of their working years at the plant. They retired at a time when Honeywell promised in a CBA that it would pay for their health insurance. However, the CBA expired in 2011 and Honeywell did not renew it. Honeywell sold the plant and, later, stopped paying for its retirees health care. Those retirees filed suit. The district court dismissed the retirees suit, finding that Honeywell s promise to pay for health care ended when the CBA expired. The Sixth Circuit affirmed, reasoning that the agreement promised health care for the duration of [the CBA]. As a result, Honeywell s obligation to pay for its Fostoria retirees health care ended when the CBA expired. Key Employment Law Decisions 1.5

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11 KEY EMPLOYMENT LAW DECISIONS BY THE U.S. SUPREME COURT & 6 TH CIRCUIT Fred G. Pressley* *Many thanks to Arslan Sheikh for his assistance in preparing these materials Porter Wright Morris & Arthur LLP EMPLOYMENT DISCRIMINATION 2018 Porter Wright Morris & Arthur LLP Key Employment Law Decisions 1.7

12 TRANSGENDER DISCRIMINATION EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. 884 F.3d 560 (6th Cir. 2018) Discrimination on the basis of transgender status is necessarily discrimination on the basis of sex and therefore prohibited under Title VII Rejected argument of the Religious Freedom Restoration Act precluding enforcement of Title VII 2018 Porter Wright Morris & Arthur LLP DISABILITY DISCRIMINATION Mosby-Meachem v. Memphis Light, Gas & Water Division 883 F.3d 595 (6th Cir. 2018) Employer violated the Americans with Disabilities Act Some functions listed in employee job description were never performed during her time of employment 2018 Porter Wright Morris & Arthur LLP 1.8 Federal Courts Update

13 SEXUAL ORIENTATION DISCRIMINATION Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm n U.S., 2018 U.S. LEXIS 3386 (2018) Reversed the Colorado Civil Rights Commission s decision that a baker discriminated against a same-sex couple who sought to purchase a wedding cake Avoided making a broad ruling on the intersection of anti-discrimination laws and the Free Exercise Clause 2018 Porter Wright Morris & Arthur LLP WAGE & HOUR 2018 Porter Wright Morris & Arthur LLP Key Employment Law Decisions 1.9

14 RETALIATION Pittington v. Great Smoky Mountain Lumberjack Feud, LLC 880 F.3d 791 (6th Cir. 2018) Remanded a Title VII retaliation case for a new trial on back pay, reasoning that the lower court erred by placing the burden of proof on the plaintiff to show he mitigated his damages 2018 Porter Wright Morris & Arthur LLP FAIR LABOR STANDARDS ACT Encino Motorcars, LLC v. Navarro U.S., 138 S. Ct. 1134, 200 L.Ed.2d 433 (2018) Service providers at an automobile dealership are exempt from the FLSA s overtime pay requirement Courts should apply a fairness test when analyzing whether a job is covered under the exempt classifications of the FLSA 2018 Porter Wright Morris & Arthur LLP 1.10 Federal Courts Update

15 FAIR LABOR STANDARDS ACT Stein v. hhgregg, Inc. 873 F.3d 523 (6th Cir. 2017) Employer s practice of paying at least minimum wage to commissioned employees when earned commissions fell short of minimum wage during a given pay period and then later deducting that amount if the employee made more than minimum wage in the future, did not violate the FLSA s requirement that minimum wages be paid free and clear without condition Concluded that recouping draws from later paychecks did not constitute an unlawful kick-back 2018 Porter Wright Morris & Arthur LLP LABOR 2018 Porter Wright Morris & Arthur LLP Key Employment Law Decisions 1.11

16 UNIONS Janus v. AFSCME 585 U.S. (2018) Unconstitutional to allow public employee unions to require collective bargaining fees from workers who choose not to join the union Fair share fees violate the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern 2018 Porter Wright Morris & Arthur LLP NLRA & FAA Epic Sys. Corp. v. Lewis U.S., 200 L.Ed.2d 889 (2018) Arbitration agreements requiring individual arbitration as opposed to collective arbitration are enforceable under the FAA, regardless of allowances set out within the NLRA 2018 Porter Wright Morris & Arthur LLP 1.12 Federal Courts Update

17 COLLECTIVE BARGAINING CNH Indus. N.V. v. Reese U.S., 138 S.Ct. 761, 762, 200 L.Ed.2d. 1 (2018) Collective bargaining agreements are to be interpreted according to ordinary principles of contract law Contract is not ambiguous unless it is subject to more than one reasonable interpretation 2018 Porter Wright Morris & Arthur LLP COLLECTIVE BARGAINING Watkins v. Honeywell International, Inc. 875 F.3d 321 (6th Cir. 2017) Dismissed retirees suit Employer s promise to pay for the employees healthcare ended when the collective bargaining agreement expired 2018 Porter Wright Morris & Arthur LLP Key Employment Law Decisions 1.13

18 THANK YOU Fred G. Pressley Porter Wright Morris & Arthur LLP 2018 Porter Wright Morris & Arthur LLP 1.14 Federal Courts Update

19 Chapter 2: Precision Advocacy: Civil Motion Practice The Honorable Jack Zouhary U.S. District Court, Northern District of Ohio Toledo, Ohio Table of Contents Precision Advocacy: Civil Motion Practice PowerPoint Presentation... 1 Precision Advocacy: Civil Motion Practice i

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21 Precision Advocacy: Civil Motion Practice 2.1

22 Precision Advocacy: Civil Motion Practice Hon. Jack Zouhary THE 2017 ABA ROADSHOW Outgrowth of 2016 programs focused on 2015 Amendments to FRCP Programs in twelve cities; lawyer and judge faculty Explored innovative approaches and best practices for civil motions Guiding principle: Rule 1 (just, speedy and inexpensive resolution of civil cases) 2015 Amendments expanded mandate of Rule 1 to include parties and counsel as well as the court 2.2 Federal Courts Update

23 MOTIONS IN CIVIL CASES Filed or terminated district courts 267,607 motions 241,007 total orders 302,662 total cases MOTIONS BY TYPE Motions to dismiss 122,729 Motions for summary judgment 60,283 Motions for preliminary injunction 5,260 Discovery motions 68,612 Motions for sanctions 6,666 Applications for TRO 4,057 Precision Advocacy: Civil Motion Practice 2.3

24 NUMBER OF ORDERS RESOLVING MOTIONS Motions to dismiss 143,163 Motions for summary judgment 29,320 Motions for preliminary injunction 4,295 Discovery motions 55,786 Motions for sanctions 4,960 Applications for TRO 3,483 PERCENTAGE OF MOTIONS GRANTED WHOLLY OR IN PART Motions to dismiss 60% Motions for summary judgment 49% Motions for preliminary injunction 28% Discovery motions 58% Motions for sanctions 22% Applications for TRO 31% 2.4 Federal Courts Update

25 MEDIAN DAYS FROM FILING TO DISPOSITION Motions to dismiss 77 Motions for summary judgment 132 Motions for preliminary injunction 38 Discovery motions 15 Motions for sanctions 49 Applications for TRO 9 PROCEDURE WHY AND WHEN TO FILE A MOTION JUDICIAL MANAGEMENT Precision Advocacy: Civil Motion Practice 2.5

26 WHY LAWYERS FILE MOTIONS To obtain or determine the scope of discovery To dispose of claims or defenses To narrow or clarify issues To preserve the record for appeal To gain tactical or strategic advantage To accumulate billable hours Habit ( we do it in every employment case ) BEST PRACTICES FOR LAWYERS Triage: thinking about whether a motion furthers the client s interests AND is consistent with Rule 1 Relationships: maintaining an appropriate professional relationship with opposing counsel and credibility with the court (civility weakness) 2.6 Federal Courts Update

27 BEST PRACTICES FOR JUDGES I Pre filing conferences, meet and confer requirements Availability for informal resolution of scheduling and discovery disputes Active case management: developing a plan for litigated cases (including motions) at the Rule 16 conference; informal resolution of non dispositive Rule 12 motions; focusing scope of motions for summary judgment Emphasis on efficiency BEST PRACTICES FOR JUDGES II What works best depends upon nature of docket, legal culture and judicial skill set, judicial openness to innovation judges often aren t aware of what their colleagues are doing In districts in which significant responsibility for motion practice is delegated from Article III judges to Magistrate Judges, frequent communication and coordination are critical Precision Advocacy: Civil Motion Practice 2.7

28 SUBSTANCE HOW TO PRESENT OR OPPOSE A MOTION EFFECTIVELY BEST PRACTICES FOR LAWYERS I Think about why you are bringing the motion Think about your audience: whom are you trying to persuade? Focus: they re called briefs for a reason Stick to the law and the facts: avoid personal attacks, sweeping pronouncements and legalese Explain why you think oral argument would be helpful to the court 2.8 Federal Courts Update

29 BEST PRACTICES FOR LAWYERS II Don t be afraid to make appropriate concessions: explain why you win anyway Avoid new matter in reply briefs Be focused and restrained in the use of motions for summary judgment Remember that the purpose of oral argument usually is to respond to questions from the court ADVICE FROM THE JUDGES We re busy. Tell us why a motion matters and what specific relief you re seeking Follow the rules (FRCP, local and local local ) Avoid acrimony with opposing counsel Know your case, and be accurate in citing the law and the record In oral argument, be responsive to our questions and concerns Precision Advocacy: Civil Motion Practice 2.9

30 Strategic Case Management Players: Judge Judicial Assistant Deputy Clerk Law Clerk Magistrate Counsel Team Sport Judicial Engagement Assess case and its challenges at outset Encourage communication and cooperation Simplify the issues streamline the process Enforce deadlines for motions and trial Use active and continuing judicial involvement Explore settlement periodically 2.10 Federal Courts Update

31 Proposed Amendments to the Federal Civil and Evidence Rules New material is underlined in red; matter to be omitted is lined through. Rule 30. Depositions by Oral Examination (b) Notice of the Deposition; Other Formal Requirements. * * * * * (6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Precision Advocacy: Civil Motion Practice 2.11

32 Before or promptly after the notice or subpoena is served, and continuing as necessary, the serving party and the organization must confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify. A subpoena must advise a nonparty organization of its duty to make this designation and to confer with the serving party. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. * * * * * Rule 404. Character Evidence; Other Crimes, Wrongs or Other Acts (b) Other Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of aany other crime, wrong, or other act is not admissible to prove a person s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: 2.12 Federal Courts Update

33 (3) Notice in a Criminal Case. In a criminal case, the prosecutor must: (A)provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) articulateinthenoticethenon propensity purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and (C) do so in writing before trial sufficiently ahead of trial to give the defendant a fair opportunity to meet the evidence or in any form during trial if the court, for good cause, excuses lack of pretrial notice. Precision Advocacy: Civil Motion Practice 2.13

34 Chapter 3: Supreme Court: The Term in Review ( ) The Honorable Sharon Ovington U.S. District Court, Southern District of Ohio City/State Table of Contents I. First Amendment... 1 A. Janus v. American Fed n of State, Cty., & Mun. Employees, 138 S. Ct (June 27, 2018) B. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct (June 4, 2018)... 1 II. Fourth Amendment... 2 Carpenter v. United States, 138 S. Ct (June 22, 2018) III. Fifth Amendment... 2 McCoy v. Louisiana, 138 S. Ct (May 14, 2018) IV. Sixth Amendment... 3 Weaver v. Massachusetts, 137 S. Ct (June 22, 2017) V. Immigration Law... 3 A. Trump v. Hawaii, 138 S. Ct (June 26, 2018) B. Jennings v. Rodriguez, 138 S. Ct. 830 (Feb. 27, 2018) VI. Voters Rights... 4 Husted v. A. Philip Randolph Institute, 138 S. Ct (June 11, 2018) VII. Jurisdiction... 4 Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco City, 137 S. Ct (June 19, 2017) VIII. Federal Courts... 5 A. Artis v. District of Columbia, 138 S. Ct. 594 (Jan. 22, 2018) B. Goodyear Tire & Rubber Co., v. Haeger, 137 S. Ct (Apr. 18, 2017) Supreme Court: The Term in Review ( ) i

35 IX. Federalism... 6 A. South Dakota v. Wayfair, Inc., 138 S. Ct (June 21, 2018) B. Murphy v. National Collegiate Athletic Association, 138 S. Ct (May 14, 2018) X. Federal Arbitration Act... 6 Epic Systems Corp. v. Lewis, 138 S. Ct (May 21, 2018) XI. Federal Forfeiture... 7 Honeycutt v. United States, 137 S. Ct (June 5, 2017) XII. Criminal Pleas... 7 Class v. United States, 138 S. Ct. 798 (Feb. 21, 2018)... 7 XIII. Civil Rights A. Sause v. Bauer, 138 S. Ct (June 28, 2018) B. Kisela v. Hughes, 138 S. Ct (Apr. 2, 2018) ii Federal Courts Update

36 Chapter 3: Supreme Court: The Term in Review ( ) The Honorable Sharon Ovington U.S. District Court, Southern District of Ohio Dayton, Ohio I. First Amendment A. Janus v. American Fed n of State, Cty., & Mun. Employees, 138 S. Ct (June 27, 2018). Certiorari to the U.S. Court of Appeals for the Seventh Circuit. Reversed Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Gorsuch. Requiring public employees who choose not to join a union to pay agency fees violates their free speech rights. Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), is overruled. Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, dissented with opinion. B. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct (June 4, 2018) Certiorari to the Court of Appeals of Colorado. Reversed Justice Kennedy, joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan, and Gorsuch, and in part by Justice Thomas. In ruling that a baker s refusal to make a wedding cake for a same-sex couple violated their rights, the Colorado Civil Rights Commission did not do so with the religious neutrality that the Constitution requires. This violated the baker s Free Exercise of Religion rights. Supreme Court: The Term in Review ( ) 3.1

37 The Civil Rights Commission s treatment of [the baker s] case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. Justice Kagan, joined by Justice Breyer, concurred with opinion. Justice Gorsuch, joined by Justice Alito, concurred with opinion. Justice Thomas concurred in part and in the judgment with opinion. Justice Ginsburg, joined by Justice Sotomayor, dissented with opinion. II. Fourth Amendment Carpenter v. United States, 138 S. Ct (June 22, 2018). Certiorari to the U.S. Court of Appeals for the Sixth Circuit. Reversed Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Without a search warrant, police collected from wireless carrier companies cell phone records that enabled them to determine Carpenter s movements and locations continuously over a period of several months. This was a search and required a search warrant. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user s claim to Fourth Amendment protection. Justice Kennedy, joined by Justices Thomas and Alito, dissented with opinion. Justice Thomas dissented with opinion. Justice Alito, joined by Justice Thomas, dissented with opinion. Justice Gorsuch dissented with opinion. III. Fifth Amendment McCoy v. Louisiana, 138 S. Ct (May 14, 2018). Certiorari to the Supreme Court of Louisiana. Reversed Justice Ginsburg, joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan. [A criminal] defendant has the right to insist that counsel refrain from admitting guilt, even when counsel s experience-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Violation of a defendant s Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called structural ; when present, such an error is not subject to harmless error review. Justice Alito, joined by Justices Thomas and Gorsuch, dissented with opinion. 3.2 Federal Courts Update

38 IV. Sixth Amendment Weaver v. Massachusetts, 137 S. Ct (June 22, 2017). Certiorari to the Supreme Judicial Court of Massachusetts. Affirmed Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas, Ginsburg, Sotomayor, and Gorsuch. The trial judge closed the court to the public for two days during the jury selection process for Weaver s murder trial. Weaver s counsel did not object at trial and Weaver did not raise the issue on direct review. Although closing the proceedings was a structural error, Presley v. Georgia, 558 U.S. 209 (2010), Weaver is not entitled to relief because he has not shown a reasonable probability of a different outcome but for counsel s failure to object, and he has not shown that counsel s shortcomings led to a fundamentally unfair trial. Justice Thomas, joined by Justice Gorsuch, concurred with opinion. Justice Alito concurred in the judgment with opinion. Justice Breyer, joined by Justice Kagan, dissented with opinion. This decision resolved a split in the circuit courts of appeals. The U.S. Courts of Appeals for the First and Sixth Circuits had held that when counsel has unreasonably failed to object to a structural error, the defendant is entitled to a new trial without showing more. The U.S. Courts of Appeals for the Second and Eleventh Circuits had held that a showing of prejudice is also necessary. V. Immigration Law A. Trump v. Hawaii, 138 S. Ct (June 26, 2018). Certiorari to the U.S. Court of Appeals for the Ninth Circuit. Reversed Chief Justice Roberts, joined by Justices Kennedy, Thomas, and Alito. The President s order excluding foreign nationals from specified countries from entering the United States is a valid exercise of the President s constitutional and statutory authority, and did not violate the Establishment Clause of the First Amendment. Justice Kennedy concurred with opinion. Justice Thomas concurred with opinion. Justice Breyer, joined by Justice Kagan, dissented with opinion. Justice Sotomayor, joined by Justice Ginsburg, dissented with opinion. Supreme Court: The Term in Review ( ) 3.3

39 B. Jennings v. Rodriguez, 138 S. Ct. 830 (Feb. 27, 2018). Certiorari to the U.S. Court of Appeals for the Ninth Circuit. Reversed Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, and in part by Justices Thomas and Gorsuch, and in part by Justice Sotomayor. Aliens pending removal under 8 U.S.C. 1225(b), 1226(a), or 1226(c) may be detained pending removal. Nothing in these statutes provides for a bail or release hearing during such detention. Justice Thomas, joined by Justice Gorsuch, concurred in part and in the judgment with opinion. Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented with opinion. VI. Voters Rights Husted v. A. Philip Randolph Institute, 138 S. Ct (June 11, 2018). Certiorari to the U.S. Court of Appeals for the Sixth Circuit. Reversed Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Gorsuch. Ohio law requires removing from voter rolls the names of persons who, after not having voted for two years, do not return a postage prepaid card verifying their address and who do not vote in any election for four more years. This law does not violate the National Voter Registration Act of 1993 as amended by the Help America Vote Act of 2002, see 52 U.S.C Justice Thomas concurred with opinion. Justice Breyer, joined by Justices Ginsburg, Kagan, and Sotomayor, dissented with opinion. Justice Sotomayor dissented with opinion. VII. Jurisdiction Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco City, 137 S. Ct (June 19, 2017). Certiorari to the Supreme Court of California. Reversed Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, Kagan, and Gorsuch. Plaintiffs who were not and are not residents of California and who bought Bristol- Myers Squibb (BMS) products and suffered injuries from those products outside of California joined with California residents in suing BMS in California. BMS is not incorporated in California and its principal places of business are not in California. 3.4 Federal Courts Update

40 California courts exercise of jurisdiction over BMS as to the out-of-state plaintiffs lacks a connection between the forum and the specific claims at issue and therefore violates the Due Process Clause of the Fourteenth Amendment. Justice Sotomayor dissented with opinion. VIII. Federal Courts A. Artis v. District of Columbia, 138 S. Ct. 594 (Jan. 22, 2018). Certiorari to the District of Columbia Court of Appeals. Reversed Justice Ginsburg, joined by Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan. When a district court dismisses all claims independently qualifying for federal jurisdiction it also dismisses related state claims that were before it under supplemental jurisdiction. In such case, 28 U.S.C. 1367(d) provides that any period of limitations for the claims under state law shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed. As used in 1367(d), tolled means that the state limitation period is held in abeyance, i.e., to stop the clock. Justice Gorsuch, joined by Justices Thomas, Kennedy, and Alito, dissented with opinion. B. Goodyear Tire & Rubber Co., v. Haeger, 137 S. Ct (Apr. 18, 2017). Certiorari to the U.S. Court of Appeals for the Ninth Circuit. Reversed Justice Kagan, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, and Sotomayor. A district court has inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side s legal fees, but such an order is limited to the fees the innocent party incurred solely because of the misconduct or put another way, to the fees that party would not have incurred but for the bad faith. Justice Gorsuch did not participate in this case. This decision resolved a split in the circuit courts of appeals. The U.S. Courts of Appeals for the Fourth, Seventh, and Eighth Circuits had held that the fee award is limited to costs causally related to the litigant s misconduct. The U.S. Court of Appeals for the Ninth Circuit held, in this case, that the award is not so limited. Supreme Court: The Term in Review ( ) 3.5

41 IX. Federalism A. South Dakota v. Wayfair, Inc., 138 S. Ct (June 21, 2018). Certiorari to the Supreme Court of South Dakota. Reversed Justice Kennedy, joined by Justices Thomas, Ginsburg, Alito, and Gorsuch. The Commerce Clause does not prevent South Dakota from requiring an out-ofstate seller with no physical presence in South Dakota to collect and remit sales tax. The physical presence rule of Quill is unsound and incorrect. The Court s decisions in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), and National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U.S. 753 (1967), should be, and now are, overruled. Justice Thomas concurred with opinion. Justice Gorsuch concurred with opinion. Chief Justice Roberts, joined by Justices Breyer, Sotomayor, and Kagan, dissented with opinion. B. Murphy v. National Collegiate Athletic Association, 138 S. Ct (May 14, 2018). Certiorari to the U.S. Court of Appeals for the Third Circuit. Reversed Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Kagan, and Gorsuch, and in part by Justice Breyer. The Professional and Amateur Sports Protection Act, 28 U.S.C. 3702, which prohibits states from authorizing gambling on sporting events, unconstitutionally commandeers states legislative prerogative to adopt a specific policy in violation of state sovereignty. Justice Thomas concurred with opinion. Justice Breyer concurred in part and dissented in part with opinion. Justice Ginsburg, joined by Justice Sotomayor, dissented with opinion. X. Federal Arbitration Act Epic Systems Corp. v. Lewis, 138 S. Ct (May 21, 2018). Certiorari to the U.S. Court of Appeals for the Seventh Circuit. Affirmed Justice Gorsuch, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. 3.6 Federal Courts Update

42 Under the Federal Arbitration Act, courts must enforce an agreement between an employer and employee to resolve disputes through one-on-one arbitration, 9 U.S.C. 2. Nothing in the National Labor Relations Act, 29 U.S.C , requires otherwise. Justice Thomas concurred with opinion. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented with opinion. XI. Federal Forfeiture Honeycutt v. United States, 137 S. Ct (June 5, 2017). Certiorari to the U.S. Court of Appeals for the Sixth Circuit. Reversed Justice Sotomayor, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan. Under the federal forfeiture statute, 21 U.S.C. 853, a defendant may not be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. Justice Gorsuch did not participate in this case. This decision resolved a split in the circuit courts of appeals. The U.S. Courts of Appeals for the Second, Third, Fourth, Sixth, and Eighth Circuits had applied joint and several liability under 853. The U.S. Court of Appeals for the District of Columbia had declined to apply joint and several liability under 853. XII. Criminal Pleas Class v. United States, 138 S. Ct. 798 (Feb. 21, 2018). Certiorari to the U.S. Court of Appeals for the District of Columbia Circuit. Reversed Justice Breyer, joined By Chief Justice Roberts and Justices Ginsberg, Sotomayor, Kagan, and Gorsuch. Class s guilty plea did not bar him from appealing his conviction on the ground that that statute of conviction violates the Constitution. Class s plea agreement said nothing about the right to raise on direct appeal a claim that the statute of conviction was unconstitutional. Justice Alito, joined by Justices Kennedy and Thomas, dissented with opinion. Supreme Court: The Term in Review ( ) 3.7

43 XIII. Civil Rights 1983 A. Sause v. Bauer, 138 S. Ct (June 28, 2018). On Petition for Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit. Reversed. Per Curiam. Sause s First Amendment claim that officers denied her constitutional right to pray also contained a colorable Fourth Amendment claim, so the courts below erred in dismissing her complaint for failure to state a claim. B. Kisela v. Hughes, 138 S. Ct (Apr. 2, 2018). On petition for writ of certiorari to the U.S. Court of Appeals for the Ninth Circuit. Reversed. Per Curiam. The Court of Appeals erred in denying qualified immunity to a police officer who shot a person carrying a knife. Under the circumstances the shooting did not violate clearly established law. This Court has repeatedly told courts... not to define clearly established law at a high level of generality. Justice Sotomayor, joined by Justice Ginsburg, dissented with opinion. 3.8 Federal Courts Update