Lawyers Demand Brandis Revoke ‘Vigilante Litigation’ Slur After Federal Court Loss

Public interest law firm Environmental Justice Australia has called on George Brandis to revoke comments he made yesterday and admit they were an error of judgement after the Attorney-General accused a green group of engaging in “lawfare”.

Brandis levelled the comments at the Mackay Conservation Group, which recently made a successful bid in the Federal Court to have environmental approval for Adani’s Carmichael mega-mine in Queensland’s Galilee Basin set aside because the Environment Minister failed to properly administer environmental law.

The mine would be the largest in Australia’s history and produce four time the carbon emissions of New Zealand if it goes ahead. The proposal covers more than 200 square kilometres and Adani’s project is seen as a key “first mover” that would pave the way for other, similar mines in the untapped basin litigation lawyer.

Brandis said he was not questioning the Federal Court’s decision, but rather the rules for standing under the omnibus environmental law that allowed the Mackay Conservation Group to successfully bring its challenge.

Following comments made earlier this month by the Prime Minister, who said that anti-coal activists were using the courts to “sabotage” industry, Brandis said he believed the law currently allows for “vigilante litigation by people whose aim is to game the system”.

Ariane Wilkinson, a lawyer at Environmental Justice Australia, hit back this morning arguing that Brandis’ comments are “effectively saying government ministers should not be held accountable for failing to follow the law”.

The government did not wait for a court decision after the Mackay Conservation Group brought their case — which pursued a number of legal arguments against Adani — instead conceding defeat because Environment Minister Greg Hunt had failed to properly consider a ‘conservation advice’.

This is a special type of report designed to inform the minister’s decision making about endangered species, which Hunt failed to do for two species, the Yakka Skink and the Ornamental Snake.

The court loss was immediately dismissed by the Department of Environment, which was responsible for the bungle, as a “technicality” that would be overcome within two months.

The Carmichael mine has been in the pipeline for five years now, and with its Federal Approval rescinded it currently has no environmental approvals whatsoever, and no authority to undertake on-ground works to advance the project.

Over recent months, amidst an exodus of major financial institutions which are refusing to back the $16.5 billion project, Adani has been laying off contractors and reconsidering its budgeting and timelines.

Striking a similar tone to the Prime Minister, Brandis claimed over the weekend that the nation’s environmental legislation meant “virtually anyone” had legal standing to bring cases against developments, provided they had taken part in conservation or research into the environment in the last two years.

The “statutory language is extremely loose” and the Act “provides a red carpet for vigilante litigation,” Brandis said.

A spokesperson for the Mackay Conservation Group said the organisation was not “Johnny come latelies” and had been involved in scrutinising issues related to the Carmichael project since as early as 2006.

They said the group had been particularly interested in groundwater issues, the mine’s impact on the endangered Black Throated Finch, and that it had been involved in providing submissions throughout the entire approvals process.

“The whole worry down the road is what happens if your remove that; what happens to the public interest cases which cannot be brought if that section is tightened,” the spokesperson said. “It basically denies the public the right to explore public interest issues and review these large projects we’re getting now.”

If the case had been vexatious or frivolous, they said, it would have been thrown out with costs against Mackay Conservation Group. In his broadside, aired on Sky News over the weekend, Brandis took Abbott’s line that activists were effectively saboteurs, arguing they are “determined to wipe out Queensland’s biggest industry”.

“I think the Adani case has shown why it’s very important that the courts not be used as a forum for vigilante litigation by people whose aim is to game the system,” Brandis said. “[They] have no legitimate interest other than to prosecute a political vendetta against development and bring massive developments, on which in this case some 2,600 jobs depended, to a standstill.”

Brandis is “urging [his]colleagues to deal with this matter” — a tactic likely to be endorsed by Abbott, who said that as a matter of principle big coal projects must be favoured — but Wilkinson said that “the Australian community have every right to access the justice system [and]this case is a great example of democracy in action”.

In a separate legal action in April Adani’s own expert witness conceded that — far from the 10,000 jobs Adani and Abbott have claimed the project will deliver, and still lower than the 2,600 Brandis has now adopted — the company’s mine and rail projects would create just 1,464 jobs.

The port component of Adani’s vertically integrated plans, which include what would be the largest coal terminal in the world, was not considered in that analysis. In relation to the Federal Court case Wilkinson described Brandis’ comments as “another example of the power the mining industry wields over the government”.

“The government’s outrageous response is to back this dying project and seek to remove the laws that protect the environment,” she said. ”His comments are effectively saying government ministers should not be held accountable for failing to follow the law. “We need to have the highest standards of ministerial accountability to safeguard against corruption.”

Introduction to Discovery in U.S. Civil Litigation

I am fortunate to teach electronic discovery and digital evidence in many venues. There’s the semester-long, 3 credit course at the University of Texas School of Law each Fall, the weeklong Training Academy offered to all comers each June at Georgetown Law School (as part of a splendid faculty) and the 50-70 speeches a year that keep me idling at airports. Next month, I’m adding a sixteen week, eight-session online evening program through the District of  Columbia Bar, immodestly titled “Prime Time with Craig Ball.”

All of these entail accompanying written material, so there is a lot of research and writing for the various courses and presentations.  Some of my students aren’t lawyers or are law students with the barest theoretical understanding of discovery.  I’ve found it’s never safe to assume that students know the mechanisms of last-century civil discovery, let alone those of modern e-discovery.  Accordingly, I penned the following short introduction to discovery in U.S. civil litigation and offer it here in case you need something like it, especially if you’re also teaching this stuff. It’s copyrighted, but feel free to use it with attribution civil litigation.

Though I have never known a time without discovery, I found it interesting to reflect on the fact that civil discovery is only about 20 years older than I am; Discovery is nearly a Baby Boomer!  On a scale of jurisprudential evolution, we’re both young punks.  Need some perspective?  The FRCP are exactly the same age as U.S. Supreme Court Justice Stephen Breyer, former Attorney General Janet Reno and Prof. Alan Dershowitz. .

Introduction to Discovery in U.S. Civil Litigation

Until the mid-20^th century, the trial of a civil lawsuit was an exercise in ambush.  Parties to litigation knew little about an opponent’s claims or defenses until aired in open court.  A lawyer’s only means to know what witnesses would say was to somehow find them before trial and persuade them to talk about the case.  Witnesses weren’t obliged to speak with counsel, and even when they did so, what they volunteered outside of court might change markedly when under oath on the stand.  Too, at law, there was no right to see documentary evidence before trial.

John Henry Wigmore, nicely summed up the situation in his seminal, A Treatise on the System of Evidence in Trial at Common Law (1904).  Citing the Latin maxim, nemo tenetur armare adversarium suum contra se (“no one is bound to arm his adversary against himself”), Wigmore explained:

To require the disclosure to an adversary of the evidence that is to be produced would be repugnant to all sportsmanlike instincts. Rather permit you to preserve the secret of your tactics, to lock up your documents in the vault, to send your witness to board in some obscure village, and then, reserving your evidential resources until the final moment, to marshal them at the trial before your surprised and dismayed antagonist, and thus overwhelm him.  Such was the spirit of the common law; and such in part it still is. It did not defend or condone trickery and deception; but it did regard the concealment of one’s evidential resources and the preservation of the opponent’s defenseless ignorance as a fair and irreproachable accompaniment of the game of litigation.

Our forebears at common law[1] feared that disclosure of evidence would facilitate unscrupulous efforts to tamper with witnesses and promote the forging of false evidence.  The element of surprise was thought to promote integrity of process.

Legal reformers hated “trial by ambush” and, in the late-1930’s, they sought to eliminate surprise and chicanery in U.S. courts by letting litigants obtain information about an opponent’s case before trial in a process dubbed “discovery.”[2]  The reformer’s goal was to streamline the trial process and enable litigants to better assess the merits of the dispute and settle their differences without need of a trial.

After three years of drafting and debate, the first Federal Rules of Civil Procedure went into effect on September 16, 1938.  Though amended many times since, the tools of discovery contained in those nascent Rules endure to this day:

• Oral and written depositions (Rules 30 and 31);
• Interrogatories (Rule 33);
• Requests to inspect and copy documents and to inspect tangible and real property (Rule 34);
• Physical and mental examinations of persons (Rule 35);
• Requests for admissions (Rule 36);
• Subpoena of witnesses and records (Rule 45).

Tools of Discovery Defined

Depositions
A deposition is an interrogation of a party or witness (“deponent”) under oath, where both the questions and responses are recorded for later use in hearings or at trial.  Testimony may be elicited face-to-face (“oral deposition”) or by presenting a list of questions to be posed to the witness (“written deposition”).  Deposition testimony may be used in lieu of a witness’ testimony when a witness is not present or as a means to impeach the witness in a proceeding when a witness offers inconsistent testimony.  Deposition testimony is typically memorialized as a “transcript” made by an official court reporter, but may also be a video obtained by a videographer.

Interrogatories
Interrogatories are written questions posed by one party to another to be answered under oath.  Although the responses bind the responding party much like a deposition on written questions, there is no testimony elicited nor any court reporter or videographer involved.

Requests for Production
Parties use Requests for Production to demand to inspect or obtain copies of tangible evidence and documents, and are the chief means by which parties pursue electronically stored information (ESI).  Requests may also seek access to places and things.

Requests for Physical and Mental Examination
When the physical or mental status of a party is in issue (such as when damages are sought for personal injury or disability), an opposing party may seek to compel the claimant to submit to examination by a physician or other qualified examiner.

Requests for Admission
These are used to require parties to concede, under oath, that particular facts and matters are true or that a document is genuine.

Subpoena
A subpoena is a directive in the nature of a court order requiring the recipient to take some action, typically to appear and give testimony or hand over or permit inspection of specified documents or tangible evidence.  Subpoenas are most commonly used to obtain evidence from persons and entities who are not parties to the lawsuit.

Strictly speaking, the Federal Rules of Civil Procedure do not characterize subpoenas as a discovery mechanism because their use is ancillary to depositions and proceedings.  Still, they are employed so frequently and powerfully in discovery as to warrant mention.

Scope of Discovery Defined

Rule 26(b)(1) of the Federal Rules of Civil Procedure defines the scope of discovery this way:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

The Federal Rules don’t define what is “relevant,” but the generally accepted definition is that matter is deemed relevant when it has any tendency to make a fact more or less probable.  Information may be relevant even when not admissible as competent evidence, such as hearsay or documents of questionable authenticity.

The requirement that the scope of discovery be proportional to the needs of the case was added to the Rules effective December 1, 2015, although it has long been feasible for a party to object to discovery efforts as being disproportionate and seek protection from the Court.

Certain matters are deemed beyond the proper scope of discovery because they enjoy a privilege from disclosure.  The most common examples of these privileged matters are confidential attorney-client communications and attorney trial preparation materials (also called “attorney work product”).  Other privileged communications include confidential communications between spouses, between priest and penitent and communications protected by the Fifth Amendment of the U.S. Constitution.

Protection from Abuse and Oppression

The discovery provisions of the Federal Rules of Civil Procedure are both sword and shield.  They contain tools by which litigants may resist abusive or oppressive discovery efforts.  Parties have the right to object to requests and refrain from production on the strength of those objections.  Parties may also seek Protective Orders from the court.  Rule 26(c) provides:

The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

(E) designating the persons who may be present while the discovery is conducted;

(F) requiring that a deposition be sealed and opened only on court order;

(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

Character and Competence in Discovery

Discovery is much-maligned today as a too costly, too burdensome and too intrusive fishing expedition.[3]  Certainly, its use is tainted by frequent instances of abuse and obstruction; yet, the fault for this stems from the architects of discovery—principally lawyers—and not the mechanics. Discovery is effective and even affordable when deployed with character and competence.

But, what’s feasible is often at odds with what’s done.  There is a sufficient dearth of character and competence among segments of the bar as to insure that discovery abuse and obstruction are commonplace; so much so that many lawyers frequently rationalize fighting fire with fire in a race to the bottom.

Character is hard to instill and harder still to measure; but, competence is not.  We can require that lawyers master the ends and means of discovery—particularly of electronic discovery, where so many lag—and we can objectively assess their ken.  When you can establish competence, you can more easily discern character or, as Oliver Wendell Holmes, Jr. aptly observed, you can know what any dog knows; that is, the difference between being stumbled over and being kicked.

To leap the competence chasm for e-discovery, lawyers must first recognize the value and necessity of acquiring a solid foundation in the technical and legal aspects of electronic evidence; bar associations, law schools and continuing education providers must supply the accessible and affordable educational opportunities and resources needed to help lawyers across.

[1] “Common law” refers to the law as declared by judges in judicial decisions (“precedent”) rather than rules established in statutes enacted by legislative bodies.

[2] That is not to say that discovery was unknown.  Many jurisdictions offered a mechanism for a Bill of Discovery, essentially a separate suit in equity geared to obtaining testimony or documents in support of one’s own position.  However, Bills of Discovery typically made no provision for obtaining information about an opponent’s claims, defenses or evidence—which is, of course, what one would most desire.  As well, some states experimented with procedural codes that allowed for discovery of documents and taking of testimony (e.g., David Dudley Field II’s model code).  For a comprehensive treatment of the topic, see, Ragland, George, Jr., Discovery Before Trial, 1932.

[3] Such concerns are not new.  Well before the original Rules went into effect, the Chairman of the Rules Advisory Committee exclaimed, “We are going to have an outburst against this discovery business unless we can hedge it about with some appearance of safety against fishing expeditions.” Proceedings of the Advisory Committee (Feb. 22, 1935), at CI-209-60-0-209.61.  Many still curse “this discovery business,” particularly those most likely to benefit from the return of trial by ambush and those who would more-or-less do away with trials altogether.

Is Patent Litigation Dead? What Gives?

By DAVID LAT

Nov 11, 2015 at 5:41 PM

The world of IP litigation? (photo of Chapel Hill Cemetery by Ildar Sagdejev via Flickr)

A slowdown in the world of patent litigation? It is, in fact, “a thing” (as the kids say nowadays). If you look at the Biglaw firms with the biggest drops in attorney headcount, a number of them are known for their IP litigation practices. And it’s not just IP lit departments at Biglaw firms; litigation departments at IP-focused firms are also suffering (as this case studydemonstrates).

We aren’t the only ones who have taken notice of this phenomenon. Our friends at Law360, for example, have published articles like IP Boutiques Shrink Amid Litigation Slowdown. This shouldn’t come as a shock; our columnist Mark Herrmann predicted in January that the slowdown in IP lit that he already observed back then would only get worse over time what is litigation.

Last weekend, I attended an interesting panel at the 2015 annual convention of theNational Asian Pacific American Bar Association (NAPABA), “Is Patent Litigation Dead? What Gives?” It featured the following speakers:

• Bijal Vakil (moderator), an IP litigation partner at White & Case;
• Diana Luo, assistant general counsel at Walmart Global eCommerce;
• Michael Shen, managing counsel for patent litigation at Taiwan Semiconductor Manufacturing Company (TSMC); and
• Vaishali Udupa, vice president and assistant general counsel for IP litigation and policy at Hewlett Packard Enterprise.

What’s driving the slowdown in patent litigation? One major factor is the Supreme Court’s ruling in Alice Corp. v. CLS Bank International (2014). As Mark Herrmannsummarized it, the Court in Alice held “that certain business methods, previously thought to be patentable, are not.” (You can read Justice Thomas’s opinion for a unanimous Court here.)

Diana Luo of Walmart said that Alice has been very helpful to Walmart’s defense strategy (and Walmart is almost always a defendant rather than a plaintiff in patent cases). The company, citing Alice, can get rid of cases at an earlier stage in the proceedings — especially cases brought by patent trolls aka “non-practicing entities” (NPEs), if you want to be more polite. Alice didn’t represent a total sea change — prior toAlice, Walmart and other defendants had Bilski v. Kappos (2010) to rely upon — but it was still good news for Walmart and other defendants (even if not for outside counsel hoping to profit on these matters).

So cases controlled by Alice are getting disposed of more quickly and less expensively. But other areas of patent litigation are booming — which is why Michael Shen of TSMC offered an emphatic “no” to the question of whether patent litigation is dead.

At TSMC, Shen has seen an explosion in Inter Partes Review (IPR) proceedings, which he views as a form of patent litigation. As explained by the U.S. Patent and Trademark Office, IPR is “a trial proceeding conducted at the [Patent Trial and Appeal] Board to review the patentability of one or more claims in a patent only on a ground that could be raised under [35 U.S.C.] §§ 102 or 103, and only on the basis of prior art consisting of patents or printed publications.” The grounds for IPR are limited, and the PTO charges a pretty penny for filing them, but overall IPR proceedings can be faster and less expensive than other forms of IP litigation (which might be bad news for outside counsel hoping to run up big bills).

Vaishali Udupa of Hewlett Packard Enterprise agreed with Shen that patent litigation is far from dead. HP Enterprise is usually but not always a defendant — sometimes it has to sue competitors for infringement — so it has to be careful about the arguments that it makes about precedents like Alice. Udupa said that while there was a dip in IP cases for HP in 2014, this year the company saw an uptick.

“Patent trolls are smart,” Udupa said. “They change with the landscape.” So it’s crucial for companies to protect patent quality and the value of patents when they seek to patent inventions.

One important issue for companies that affects their patent dockets is where they are fighting the cases. Certain jurisdictions are less receptive to Alice motions than others. For example, the Eastern District of Texas, a famous haven for patent trolls, continues to be less friendly to defendants. Judge James Rodney Gilstrap of that court, who has the biggest patent docket in the nation, earlier this year announced a special procedure requiring defendants to seek leave of court for bringing an early Alice motion. So patent litigation is alive and well in E.D. Tex. — and if you’re a defendant in that court, you might want to try and get the case moved to the Northern District of California, the District of Delaware, or another, more-defendant friendly jurisdiction.

The America Invents Act (AIA), passed in 2011, contributed to the changing landscape of IP litigation (and the slowdown in such work, as discussed by Mark Herrmann). But it didn’t do anything on venue reform — i.e., fixing the Eastern District of Texas problem — which many defendants see as the next frontier.

We probably won’t see major patent reform legislation anytime soon, according to the panelists. Elections are looming, Congress has other issues on its plate, and there are competing interests vying for influence on Capital Hill when it comes to IP issues. Any effort to curb frivolous lawsuits through patent reform must also preserve the incentives for innovation that lie at the heart of our patent system.

During the Q&A session, I asked the panelists — almost all of them from the in-house world — to see things from the perspective of outside counsel. These recent changes in the IP litigation world sound great for defendants and in-house lawyers, but what about the outside law firms that do IP lit work? Don’t you feel a little bad for all the outside lawyers and law firms just trying to make a living?

Law firm practitioners of IP litigation need to be smart, according to Vaishali Udupa of HP Enterprise. The days of throwing dozens of people on a case are over. IP litigators, both in-house and outside counsel, must figure out which cases are important and which ones aren’t. Where can the budget be streamlined? Can you reduce costs through a joint defense? How small a team can be staffed on a matter? Outside lawyers who can provide value to in-house counsel by litigating cases smartly and economically will become the go-to practitioners in the space.

Mike Shen of TSMC agreed. There’s still plenty of work, he said; it just needs to be done differently.

“My budget hasn’t shrunk,” Shen said. “I still have a big budget for managing litigation. But you need to show that you’re worth it. We aren’t going to pay for throwing an army of young associates on a case.”

What implications does this have for law students and young lawyers who are interested in IP litigation? First, you need to learn as much as you can about how you can bring value to the table, the panelists said. Being a general IP litigator is a lot tougher; you need to figure out the specific areas and issues that will matter to future clients. Bijal Vakil of White & Case mentioned global IP litigation and design patent cases as two areas of possible growth.

Second, you need to be better prepared than ever. Diana Luo of Walmart said that she will prepare extensively for even the briefest meeting with her general counsel. Shen urged young lawyers not to underestimate the importance of your role, even if you are junior. A client might not be “your” client in the same way as it’s the relationship partner’s client, but you still need to do your best at every task you’re given.

Finally, from the in-house perspective, diversity is more important than ever. Udupa said she wants to see diverse individuals not just on the pitch but on the bill, i.e., as timekeepers on the matter. In other words, outside counsel, don’t just throw a token minority on your pitch or RFP response; you need to staff the matter with minorities as well.

Udupa mentioned a huge case of hers that has dozens of outside lawyers working on it. After reviewing the bill, she contacted the relationship partner and said, “We have a problem. There is one woman associate and two women paralegals on this matter. I want a list of your women IP litigators — and if you don’t have enough, I’m happy to give you the names of some great women you can consider hiring.”

In another case that was scheduled to go to trial, the outside firm wanted to take one of its associates, a woman who was about to get married, off the case. It sounded like the firm wanted to do this out of consideration for the associate — but it didn’t sit well with Udupa. She called up the associate directly and asked, “Do you still want to work on this case?” After the associate said yes, Udupa made it so. The bottom line: just because a woman is getting married or having a baby doesn’t mean she should be taken off all interesting work.

So is patent litigation dead? There are pockets of weakness here and there, to be sure. But for lawyers and law firms who understand the importance of high-quality work, good value for the client, and diversity, the IP litigation world remains full of opportunities.

Beyond Biglaw: Defining A Litigation Victory

By GASTON KROUB

Sep 22, 2015 at 11:31 AM

The big news in the patent world last week was the latest Federal Circuit ruling in the long-running Apple v. Samsung patent saga. Hard to believe that I used this case as an example when discussing patent law with my son’s fourth-grade class — the same son who is now a seventh-grader. If I asked him today what happened with the case, he would probably say that Apple has won, even though the case continues to generate headlines and seems headed for many more years of contest, absent a settlement. I venture to think that many regular people actually believed the case was over, and that Apple had prevailed, even though the latest developments prove otherwise — at least on the former point.

There is no dispute that this case is the most well-known patent case of this generation, and had demonstrated the ability to continue to generate headlines — not only in the patent or legal media, but also across a wide spectrum of mass-media outlets. Again, if I asked my kids to name a patent case, this would almost definitely be the first (only?) one that gets mentioned. What is not as obvious, however, is what were the true goals of the case for each side, and why the case continues as a result define litigation.

In the latest development, as you may have read elsewhere (good writeup by Bloomberg), the Federal Circuit decided that Judge Lucy H. Koh (N.D. Cal.) had erred by ruling that Apple was not entitled to an injunction once it had demonstrated that Samsung had infringed on its patents. The lower court had reasoned that an injunction should issue only if Apple could prove that the patented features that were infringed drove all of the customer demand for the infringing products.

In contrast, the appeals court — in a split decision that included a vigorous dissent from Chief Judge Sharon Prost — decided that Apple could be entitled to an injunction as long as it showed some connection between the infringing features and customer demand. If anyone is interested on my take for investors on the situation, they can read more at Mimesis Law. The consensus, however, is that this “victory” by Apple will have muted economic impact — at least for the current case. If the decision is upheld by the full Federal Circuit, or if en banc review is denied, then the decision will likely have substantial effects on other patent cases going forward, especially competitor cases.

Even though Apple has earned, for now, the right to press for an injunction against at least one Samsung phone, if Apple’s goals for the case had been defined as trying to get Samsung “off the market,” then the case could easily be defined as a failure. Because Samsung has continued to sell phones, despite the numerous setbacks it has encountered along the way — starting with the previous infringement findings, and culminating for now in the most recent Federal Circuit decision.

But Apple’s goal for this case was actually never about trying to get Samsung off the market, but to rather cement in the public’s collective mind that Apple is THE innovator in the smartphone space — with everyone else, and especially Samsung, just copying Apple’s innovations in an attempt to stay within touching distance of the undisputed market leader. From that perspective, the case has been a resounding success for Apple, and Samsung’s continued attempts to turn the tide are likely futile — even if they end up “winning” in the end.
If you accept that popular opinion is important, and especially when it comes to customer perception, then there is a decent argument that Apple’s efforts to assert its patents against its biggest rival in the smartphone space have already been a resounding success — even though the case is not “over,” and in fact may continue for some time yet.

As lawyers, we sometimes have a tendency to define a litigation result narrowly, and are reluctant to call a winner or loser until all appeals are exhausted, or a case has settled. Part of the reason for that is the fact that litigators often find themselves in the role as purveyors of hope to clients, and view any setbacks as temporary hurdles that will be overcome when “justice prevails in the end.” This phenomenon is not limited to outside counsel, as in-house lawyers are just as likely to advocate that a case is still “winnable,” even if some or all of the original strategic objectives have not been met.

Apple v. Samsung therefore provides some valuable lessons for litigators (and any lawyers who manage client expectations regarding litigation activity) to keep in mind, because I think it provides a good example of how important it can be to know — at all points of a case — what a favorable result for the client would be.

In fact, there is a credible argument that this whole endeavor has just been two technology giants fighting themselves to an expensive draw — at least in the legal sense. But that is beside the point, when you consider that one side of the case has met its objective (Apple), while the other continues to engage in a rear-guard action to defend its honor (Samsung).

The point is a simple one: even if your case is nowhere near as important or resource-intensive as Apple v. Samsung, the difference between a satisfied client and a disappointed one can often turn on how well the case objectives are drawn out in the beginning of a case. To that end, early communication with clients about what a realistic or achievable result from the litigation could look like is crucial.

And because litigation can be unpredictable and twisty, it is also important to periodically consult with clients on whether the definition of victory has changed, whether because of case developments or more general business developments that can affect the client’s perspective of the case and the hoped-for result. At minimum, understanding and accounting for the strategic objectives of a case will help guide the litigation team over the life of the dispute. Because the more important a case is, the more important it is to know when you can actually say you have won.

Civil Litigation: NLRB ruling expands definition of “joint employer”

By: Alina Nadir September 19, 2015

For the past three decades, the National Labor Relations Board has enforced a certain definition of “joint employer” when it came to determining obligations under the National Labor Relations Act (the Act). This definition resulted in finding an employment relationship between an entity and workers whom it does not directly employ if the entity shared or co-determined matters governing the workers’ essential terms and conditions of employment and if the entity exercised direct and immediate control over those terms and conditions. In other words, even if the entity had the power to make such decisions, it would not be considered a joint employer unless it actually exercised that power.

A recent NLRB case has done away with the requirement that an entity actually exercise its power over the workers before a joint employer status can be found. In Browning-Ferris Industries of California, 362 NLRB No. 186 (Aug. 27, 2015), Browning-Ferris Industries (BFI), the “user company,” operated a recycling facility and contracted with Leadpoint Business Services, the “supplier company,” to staff that facility.

The company’s contract provided that Leadpoint was the sole employer of its personnel and also specifically provided that there was no employment relationship between BFI and Leadpoint’s personnel. After the performance of the contract ensued, a union requested to represent some of Leadpoint’s employees, and in its petition, the union claimed that BFI was a joint employer. A union election was held, and initially, a NLRB regional director found that BFI was not a joint employer litigation definition.

The NLRB, in August 2015, reversed the regional director’s finding. In Browning-Ferris, the NLRB claimed that its finding was necessary given the “diversity of workplace arrangements in today’s economy,” and quoted the United States Supreme Court from another context, stating that the NLRB has a “responsibility to adapt the Act to the changing patterns of industrial life.” To the NRLB, that meant drastically changing the joint employer definition.

While the previous standard found no joint employment relationship where the user company exerted no direct control over supplier company’s terms and conditions of employment, the NLRB now finds such a relationship when the user company “reserves a contractual right to set a specific term or condition of employment for a supplier employer’s works,” because that company “retains the ultimate authority to ensure that the term in question is administered in accordance with its preferences.”

Even if a user company contracts with a staffing agency and reserves the right to terminate the agency’s employees, yet never actually exercises that right or acts in any way to affect the agency’s employees’ terms and conditions of employment, the user company can still be a joint employer when it comes to collective bargaining and unfair labor practices.

So, what does Browning-Ferris mean for employers? While Browning-Ferris deals with a staffing agency situation, this decision will affect other types of businesses as well. Depending upon a user company’s or franchise owner’s relationship with related entities, this decision creates a big change in who is considered an employer during collective bargaining and unfair labor practice charges. Even if a user company has little to no oversight or involvement in the supplier company, it could still be on the hook for any charges brought against the supplier.

In March, the NLRB indicated its intention to consider franchise owners a joint employer, if possible, after it decided McDonald’s is a joint employer with its franchisees while adjudicating multiple unfair labor practice charges. Browning Ferris reinforces that March decision. In its decision, the NLRB stated that a primary purposes of the Act is to “promote the peaceful settlement of industrial disputes,” however many critics of Browning-Ferris argue the decision will do exactly the opposite.

Now, in addition to the often lengthy processes of collective bargaining and litigating unfair labor practice charges, the parties will have to fight about who exactly is considered an “employer” before a dispute can be resolved. And as this decision is still new, conflicts may arise when determining the necessary parties to the negotiation and approval of a collective bargaining agreement. This can take the form of costly and lengthy litigation to find every possible “employer.”

Browning-Ferris will likely also lead to increased liability for companies that have little to no practical control over how a subcontractor or franchisee is conducting itself in terms of labor practices and breaches of collective bargaining agreements. The dissenting NLRB members argue that Browning-Ferris will have the exact opposite of its stated intent of peaceful settlement of disputes; it will likely lead to more conflict, more uncertainty, and more litigation. They warned that the decision “will subject countless entities to unprecedented new joint-bargaining obligations that most do not even know they have … and to economic protest activity, including what have heretofore been unlawful secondary strikes, boycotts, and picketing.”

Browning-Ferris makes the staffing agency model much more risky, and it could lead to companies cutting ties with staffing agencies or subcontractors in favor of hiring employees directly. By doing so, an employer has much more control over its potential liability, but places the viability of staffing agencies, subcontractors, and franchise arrangements at risk.

There are questions about just how far this new definition of joint employment will go. For example, will federal courts adopt this new definition and extend liability for unpaid wages and violations of Title VII, the ADA, etc., to every possible employer under the NLRB’s standard? If so, employers with franchisees or subcontractors will face a future full of litigation for events over which they had no realistic control.

There is the chance that Browning-Ferris will be appealed, but as of yet, no appeal has been filed. Until then, employers will have to be prepared for the possibility that they are on the hook for their subcontractor’s actions.

Alina Nadir is an Associate in Underberg & Kessler’s Labor & Employment and Litigation Practice Groups. She concentrates her practice in general employment litigation and advice.

Litigation Ahead: The Man Who The Shrug Emoticon Is Based Off Of Is Suing

Posted July 6, 2015

These days, it’s just about impossible to try to control how your image is used online. One man, though, has decided that he isn’t about to let his likeness get away from him without a fight. His name is Chip Foster, but chances are you recognize him better this way:

¯\_(ツ)_/¯

That’s right: The guy whose cocked face and hunched shoulders inspired the beloved, ubiquitous shrug emoticon is finally taking action. He’s filed lawsuits against Twitter, Facebook, Tumblr, and every other institution that’s helped to proliferate his image without context or credit litigation.

“By the time I knew what was happening, it was already too late,” says Chip. When a picture of him shrugging at a 2008 backyard barbecue went up on Facebook, “a friend commented by simply saying ‘¯\_(ツ)_/¯,’ and it got a bunch of likes. A month later, it’severywhere.”

Since then, the shrug emoticon has been used to indicate indifference to everything from articles about climate change to Game Of Thrones casting announcements to a video of an iguana sneezing, while Chip hasn’t seen a red cent for any of the over 3.5million times his image has perfectly expressed someone else’s blithe dismissal. And he’s not happy about it.

“The thing is, I’m not an apathetic guy!” said Chip. “I’m passionate about a lot of things: animal rights; education reform; getting American troops out of the Middle East. I’m being misrepresented by this emoticon over and over again. People can’t just use my face that way.”

Lawyering up wasn’t his first choice, but desperate times call for desperate measures. Even so, it’s been slow going:

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