Reflections on Epic Systems v. Lewis

By Professor Hiro Aragaki

Earlier this week, the U.S. Supreme Court decided three consolidated cases, styled Epic Systems Corp. v Lewis, Nos. 16–285, 16–300, 16–307, 584 U.S. __ (2018), that all raised the issue of whether a class arbitration wavier in various employment contracts was enforceable, given the potentially conflicting mandates of the Federal Arbitration Act (FAA) and the National Labor Relations Act (NLRA).  In a 5-4 majority opinion authored by Justice Neil Gorsuch, the Court held that there was no conflict between the two federal statutes and that both were consistent with enforcing the class arbitration wavier.  Justice Ginsburg, writing for the dissent, also found no conflict but believed that both statutes were consistent with the opposite conclusion—namely, that the class arbitration wavier was illegal and should not be enforced.  In the alternative, the dissent reasoned that even if there were a conflict, the waiver was still unenforceable. 

The basic facts of these consolidated cases were that certain employees sought to bring a putative class action against their employers even though their employment contract contained a class arbitration waiver—that is, a clause that not only requires the employee to arbitrate rather than sue in court, but that also prohibits the employee from bringing a class arbitration on behalf of similarly situated employees.  The employees argued that the waiver was illegal and thus unenforceable, because NLRA section 7 had been construed by the National Labor Relations Board to give employees an absolute, non-waivable right to band together in a class when suing their employers.  See D. R. Horton, 357 N. L. R. B. 2277 (2012).  The employers countered that under the FAA section 2, class arbitration waivers must be enforced strictly according to their terms, in some cases even if those terms are otherwise illegal. 

These cases therefore raised the specter of a conflict between two federal statutes: The NLRA, enacted in 1935, and the FAA, enacted in 1925.  Under traditional conflict of laws principles, in the event of an unavoidable conflict between coequal statutes the later-enacted statute controls (in this case, the NLRA).  In Epic Systems, that would translate into a victory for the employee.  So the employers had to hang their hat on the argument that there was no inherent conflict between the FAA and the NLRA. 

Former U.S. Soliciator General Verrilli Delivers Commencement Keynote Address

Loyola Law School, Los Angeles' 2018 Commencement address was delivered by Donald B. Verrilli Jr., partner, Munger, Tolles & Olson, LLP. Verrilli served as Solicitor General of the United States from 2011 to 2016. 

President Snyder, Dean Waterstone, distinguished faculty, alumni, family and friends, and members of the graduating class of 2018:

Thank you for inviting me to be with you today. Loyola Law School, Los Angeles is a special place and today is a special day, and I feel very privileged to be able to share it with you.

Let me start with a hearty congratulations to each and every one of you. Anybody who has been to law school knows that it was not easy to get to where you are today. So today is a day for savoring your accomplishments, reflecting on all the hard work you put in and all the obstacles you had to surmount, to earn the diploma that you will have in your hands in just a few moments. It’s a day for joy – a joy to be shared with the family and friends that helped you get to where you are now and that feel such pride in all that you have accomplished so far. So bask in it all. Enjoy the moment. Enjoy the satisfaction of having run this race well and crossing this finish line. 

It Takes a Village to Stop Cyber Crime

By Adjunct Professor Robert Kang

Adjunct Professor Robert Kang recently published It Takes a Village to Stop Cyber Crime: How Cyber Information Sharing Organizations Help Business in Need in the Association for Corporate Counsel's May 2018 magazine.

An excerpt appears below:

To minimize the need for luck, governments and various industries have created organizations designed to share security-related information among their members in a structured, regular manner. Often called “public/ private partnerships” and “information sharing organizations,” many of them follow a similar model: They are organized as nonprofit entities, and their members send information, like suspicious IP addresses and other threat indicators, to them. The sharing organization anonymizes (if requested), aggregates, and processes the submissions and, in some cases, enriches it with nonpublic information provided by government agencies or other sources.

Read the article in its entirety.

The Right of Publicity: Privacy Reimagined for a Public World

Below is an excerpt from Professor Jennifer Rothman's new book The Right of Publicity: Privacy Reimagined for a Public World, published on Friday, May 18 in the Los Angeles and San Francisco Daily Journal.

The frequently uttered and simplistic dichotomy—that privacy is about protecting the shrinking violets of the world, while the right of publicity is about protecting those who seek the limelight—was never true, and does a disservice to both those who wish to avoid publicity and those who seek it out. Actors do not want videos of them changing in a hotel room distributed online, their children followed, or their images slapped onto billboards or used in television commercials without their permission. This is not necessarily because they want to be paid for such uses, but because such uses are upsetting and disturbing, can destroy their reputations and ability to author their own identities, and turn them into puppets with others pulling the strings.

Nor do those of us who wish to live less public lives want to hide in our homes. We take walks, post family photographs to Facebook and Instagram, blog and tweet about our experiences, create YouTube channels showing how to prepare various recipes or master a video game, and leave traces behind when buying books on Amazon. These acts do not mean that private figures wish to cede the right to control how our names, likenesses, voices, and other information about ourselves is used by others. We all live our lives in public. But by doing so we should not become public property.

Professor Levitt's Testimony on Census Citizenship Question

On May 8, 2018 Loyola Law School, Los Angeles Dean for Research Justin Levitt testified before the U.S. House Committee on Oversight and Government Reform regarding the 2020 census. An excerpt appears below:

In the current political climate, asking a question about citizenship status of every individual in the country is no mere request for information. Those who work in and with communities skeptical about the role of the federal executive branch fear that the question will prove explosive. Secretary Ross made the determination to ask this question despite his own admission that the career staff of “the Census Bureau and many stakeholders expressed concern [that doing so] would negatively impact the response rate,” and despite the absence of any opportunity to test that impact before implementing the change.

Read his full testimony below:

Government Class Actions After Jennings v. Rodriguez

by Maureen Carroll, Alexandra D. Lahav, David Marcus & Adam Zimmerman

This post is excerpted from the Harvard Law Review Blog.

The Supreme Court’s recent decision in Jennings v. Rodriguez raised the momentous question of whether the government can indefinitely detain people without a hearing. If the government has its way, the case also may close the courthouse doors to a wide array of class actions long used to challenge unlawful government action.

In Jennings, the Court, in an opinion by Justice Alito, ruled that the government did not have to offer detained immigrants bond hearings under the Immigration and Nationality Act. But the Court declined to address a related issue—whether denying bond hearings would violate due process. Instead, the Court sent the case back to the Ninth Circuit to address that question first.

But the Court didn’t stop there. At the end of the majority opinion, the Court also invited the Ninth Circuit to consider whether plaintiffs could bring a class action at all for their due process claim. In so doing, the Court asked whether individual differences between plaintiffs prevented courts from certifying class actions in due process cases, just as they did in Wal-Mart Stores, Inc. v. Dukes, a multi-billion dollar damage class action decided by the Supreme Court seven years ago.

Read the complete post here.

The Right of Publicity―A Misunderstood, Misshapen, Bloated Monster

By Professor Jennifer Rothman

This post is excerpted from the Volokh Conspiracy, where Prof. Rothman is guest blogging this week.

The right of publicity is a law that few people outside of Hollywood know much about. Nevertheless, it is an increasingly important right in our digital age even when celebrities are not involved. The right of publicity provides a right to control uses of your identity, particularly your name, likeness and voice, and to stop others from using those without permission. The boundaries of these state right of publicity laws vary widely from state to state, with some limiting the claims to uses in advertising or on products, and others allowing almost any claim when the use is for the defendant's advantage. Some states limit claims only to those brought on behalf of the living, while others extend such rights after death.

In the book, I consider both the opportunities and risks that such right of publicity laws pose. I challenge the conventional, yet erroneous story of the right of publicity's development, and by doing so I provide direction on how to avoid the right's current dangerous path. The right of publicity in its current form jeopardizes the liberty of the very individuals that it is supposed to protect, while also interfering with free speech, and copyright law.

Today, I will share a short excerpt from the Introduction to the book that lays out some of the dangers and possibilities that the right poses, which I develop further in the book:

The right of publicity can be a valuable mechanism for addressing a variety of twenty-first century concerns about uses of people's images. But, despite the many benefits of having a right of publicity, its current incarnation comes with a host of dangers. The right of publicity limits what the public can say about public figures, even dead ones, and can bar the public from making sculptures, T-shirts, and posters honoring the recently deceased, such as Prince, Carrie Fisher, Robin Williams, and Muhammad Ali. It can block (and has blocked) the distribution and sale of busts of civil rights heroes, like Martin Luther King Jr. It has prevented video game makers from accurately depicting football players on historical team rosters, and television networks from using clips of their own broadcasts.

Read the complete post on the Volokh Conspiracy on Reason.