Eugene Scalia, whom Mr. Trump plans to nominate as labor secretary, has been a go-to lawyer for businesses like UPS and SeaWorld.
Challenging the Fiduciary Rule
The Obama Labor Department spent six years developing a new rule for how brokers and other financial professionals advised clients on their retirement accounts. Under the old rule, advisers had been required to provide investing advice that was “suitable.” The new rule, which the Obama administration finalized in 2016, required brokers to act as fiduciaries, meaning they would have to provide advice that was in the best interest of their clients.
The administration estimated that conflicts of interest arising under the old standard cost Americans about $17 billion a year.
Mr. Scalia was part of a team at his law firm Gibson, Dunn & Crutcher that sued to block the rule on behalf of several industry groups, including the Chamber of Commerce and the Financial Services Roundtable. The groups argued that the regulation would harm less-affluent investors because firms would simply stop offering them advice to avoid exposing themselves to liability.
Mr. Scalia called the rule a prime example of “regulatory overreach” in an interview with the author of a newsletter. He said investment advice should be overseen by the Securities and Exchange Commission and state insurance regulators, not the Labor Department.
Mr. Scalia and his team lost in a trial court in early 2017, after which Alex Acosta, the labor secretary Mr. Scalia will replace, said there was no principled legal basis for delaying initial application of the rule and began to partially adopt it. But Mr. Scalia’s team continued the fight before a federal appeals court, which ultimately ruled in their favor the following year. The rule died when the Trump administration declined further legal challenges.
Helping UPS Defeat a Disability Lawsuit
Mr. Scalia was part of legal teams that defended UPS against claims brought under the Americans with Disabilities Act in two cases during the late 1990s and 2000s. In the first case, UPS employees who could only see with one eye sued the company for refusing to allow them to become drivers, arguing that the company’s policy had discriminated against people who were capable of operating vehicles safely. The federal Equal Employment Opportunity Commission brought the case, but UPS largely prevailed in two separate appeals.
In the second case, some UPS employees claimed that the company had refused to let them return to work after they had suffered on-the-job injuries because they were unable to perform all the responsibilities of their previous jobs. The workers argued that the company violated the Americans with Disabilities Act by not providing accommodations that would let them resume work.
A lower court certified the case as a class action, but Mr. Scalia and his team successfully argued that the court should not have allowed the plaintiffs to bring their claims jointly before first investigating whether each one should be allowed to return to work under the disability law based on their individual circumstances. An appeals court ruled in the company’s favor in 2009.
Peter Blanck, a professor at Syracuse University who has written extensively about the disabilities law, said that class action suits are often critical to allowing individuals to realize their rights under the law. Absent the class certification, the plaintiffs agreed to a settlement with the company.
In these and other lawsuits involving his clients, Mr. Scalia has “consistently sought to narrow A.D.A. protections on a variety of issues, including the definition of disability and class certification” Douglas Kruse and Lisa Schur, two experts on the employment of people with disabilities at Rutgers University, said in an email.
Supreme Court Upholds Workplace Arbitration Contracts Barring Class Actions
Justice Gorsuch, he added, “appears to have put his cards on the table as firmly in favor of allowing class actions to be stamped out through arbitration agreements.”
As a result, Professor Fitzpatrick said “it is only a matter of time until the most powerful device to hold corporations accountable for their misdeeds is lost altogether.”
.. Arbitration clauses in employment contracts are a recent innovation, but they have become quite common. In 1992, Justice Ginsburg wrote, only 2 percent of non-unionized employers used mandatory arbitration agreements, while 54 percent do so today.
.. Some 23 percent of employees not represented by unions, she wrote, are subject to employment contracts that require class-action waivers.
Under those contracts, Justice Ginsburg wrote, it is often not worth it and potentially dangerous to pursue small claims individually. “By joining hands in litigation, workers can spread the costs of litigation and reduce the risk of employer retaliation,” she wrote.
.. The contracts may also encourage misconduct, Justice Ginsburg wrote.
“Employers, aware that employees will be disinclined to pursue small-value claims when confined to proceeding one-by-one, will no doubt perceive that the cost-benefit balance of underpaying workers tips heavily in favor of skirting legal obligations,” she wrote, adding that billions of dollars in underpaid wages are at issue.
.. By a 5-to-4 vote, the court said a California couple who objected to a $30 charge for what had been advertised as a free cellphone were barred from banding together with other unhappy customers.
Six Women Jointly Sue Harvey Weinstein Over Alleged Assaults
Lawsuit seeks class-action status, claims widespread coverup amounted to civil racketeering
Six women filed a lawsuit against Harvey Weinstein on Wednesday, claiming the movie producer’s actions to cover up sexual assaults amounted to civil racketeering.
The lawsuit was filed in a federal court in New York, seeking to represent what it describes as “dozens, if not hundreds,” of women who say they were assaulted by Mr. Weinstein.
The lawsuit claims that a coalition of companies and people became part of the growing “Weinstein sexual enterprise” and that they worked with him to conceal his widespread sexual harassment and assaults.