Littler Mendelson: Once, Twice, Six Times a Sanctioning? - Court Rules - U.S. Ninth Circuit
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Littler Mendelson: Once, Twice, Six Times a Sanctioning?

When I grow up, I wish for one thing (besides tons of money and someone to be my friend): I wish, nay, I pray that my name never ends up in the body of a court opinion. Seriously, how often is a lawyer’s name mentioned by a court in the opinion and it isn’t a massive screw-up? Courts never say, “Joe Smith is a brilliant advocate who presented admirable work.”

Thursday, the Ninth Circuit bench-slapped six Littler Mendelson attorneys by name, in three separate published orders, ordering them (within 21 days) to show cause why monetary sanctions should not be imposed against counsel individually for filing a frivolous petition for writ of mandamus in three separate cases. The cases, and attorneys include:

Note that In re. Nordstrom is two separate cases, with two distinct Ninth Circuit and District Court case numbers, as well as differing parties of interest.

You might be thinking: rookie associate mistake. However, four of the six are Littler shareholders, and the remaining two are well into their careers.

“I don’t recall seeing a single published sanction OSC arising out of a mandamus petition to the motions panel during the past decade,” Professor Shaun Martin of the University of San Diego stated on his blog. “To see three on the same day — issued against the same firm, no less — is nothing short of shocking.”

In each of the three orders to show cause, the Ninth Circuit stated, “Indeed, we find the petition to be frivolous and wholly without merit.”

Thanks to the miracle of PACER, we have all three of the motions available:

You’ll have to forgive us, but labor law isn’t exactly our specialty. However, none of the three requests seems particularly egregious. Perhaps the Ninth Circuit is simply upset at the quantity of requests, the relatively minor stakes in each lawsuit, or maybe even the lack of harm that would come from letting each case run its course in the district courts.

In the Nordstrom cases, the class-action plaintiffs took issue with a draw-and-commission compensation system that, according to Nordstrom, paid them a minimum of over $10 per hour, yet the plaintiffs allege violated minimum wage laws during pre and post-closing working hours, where commission-based sales were rare. The Con-way case argues that the Federal Aviation Amendments Act (FAAAA) preempts California wage-and-hour laws in regards to truck drivers.

Both seem like arguable questions, but perhaps that is the point: the five-part Bauman test for writs of mandamus contains one necessary prerequisite: the district court’s order must be clearly erroneous as a matter of law.

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