Miguel Estrada (Diego M. Radzinschi)
It’s going to take a while to sort out all the winners and losers in the wake of National Labor Relations Board v. Noel Canning. How many labor rulings will ultimately be voided because of Thursday’s opinion, which vacated key appointments to the NLRB while clarifying both the president’s power to make recess appointments and the Senate’s power to block them? On the political side, what will the decision mean for future appointments as power shifts on Capitol Hill?
On the legal front, on the other hand, picking winners is a cinch. Noel Canning, represented by Jones Day’s Noel Francisco, prevailed over the NLRB with the contention that the Senate—not the president—is the master of Senate procedure. And amicus counsel Miguel Estrada of Gibson, Dunn & Crutcher, who took up the case on behalf of Senate Republicans, delivered the argument that carried the day. Unanimously, the justices agreed with Estrada’s straightforward assertion at oral argument that “the Senate gets to decide whether the Senate is in recess.”
“Our view was that this move [by the Obama administration] was so out of bounds that anybody would see,” Estrada told us. “As it turns out, nine justices did see that this wasn’t even close.”
Thursday’s ruling caps a remarkable month of litigation victories involving Gibson Dunn, including two other blockbuster Supreme Court wins.
As June kicked off, Gibson Dunn’s Joel Cohen was among three defense lawyers we named Litigators of the Week for fending off an insider trading case brought by the U.S. Securities and Exchange Commission. Cohen represented Peter Black, who had been accused of providing an insider stock tip to his bosses at hedge fund Wynnefield Capital. A Manhattan jury cleared Black and two codefendants late last month.
On June 10, partner Theodore Boutrous Jr. won a ruling from a state court judge in Los Angeles striking down California statutes governing tenure for public school teachers. The ruling—which has already sparked a parallel challenge in New York—concluded that tenure laws protected thousands of ineffective teachers and disproportionately deprived low-income and minority students of equal access to public education.
On June 16, Theodore Olson came up with two big wins for hedge fund client NML Capital Ltd.in its effort to collect debts owed by Argentina. Olson won a 7-1 ruling from the Supreme Court in Argentina v. NML Capital, persuading the majority that the federal courts can force Argentina to produce information about its global assets to bondholders. On the same day, the high court declined to take up Argentina’s appeal of a ruling from the U.S. Court of Appeals for the Second Circuit compelling the country to pay bondholders who didn’t take part in a massive debt restructuring.
In another Supreme Court ruling the same week, partner Mark Perry won a unanimous decision in Alice Corp. v. CLS Bank International that knocked out patent claims against Gibson Dunn client CLS. The court found that Alice Corp.’s method for using a computer system to mitigate risk was too abstract for patent protection, clarifying important issues in the continuing debate over software patents.
Editor’s note: This post has been updated with additional detail about Noel Canning’s position on the Senate’s authority in the NLRB case.