Kevin Newsom

The newest judge on the U.S. Court of Appeals for the Eleventh Circuit has written an interesting opinion on a sometimes dry subject and in so doing offered clarity on waiving rights.

President Donald Trump’s one appointee so far to the court, Judge Kevin Newsom, said yes to a certified question from the Northern District of Georgia with a 20-page opinion released Thursday. Newsom continued in the style he set with his first opinion last month in a tax case: “Fear not. Keep reading.”

The U. S. Department of Labor is suing Robert Preston, former CEO and owner of the TPP Employee Stock Ownership Plan, alleging he used the program to purchase his own stock at inflated prices and engaged in other wrongdoing. Before the lawsuit, while the parties attempted to negotiate a settlement, they entered into a series of tolling agreements—“the sort that are increasingly common in civil litigation,” Newsom wrote. Despite these agreements waiving deadlines, Preston’s legal counsel attempted to defend him on the basis of those deadlines after the suit was filed, hence the question about the statute of repose.

Preston’s lawyers said the statute of repose could not be waived. Senior Judge Willis Hunt of the Northern District of Georgia agreed but allowed the federal government to petition the appeals court to settle the question. Newsom, disagreeing with the district court and Preston, came down on the Labor Department’s side in a decision joined by Judge Charles Wilson and Judge Federico Moreno of the Southern District of Florida.

“It is hornbook law that rights of all kinds—even constitutional ones—can be waived,” Newsom wrote in his opening. He named a list of rights that can be waived: Fourth Amendment freedom from unreasonable searches, Fifth Amendment privilege against self-incrimination, Sixth Amendment right to the assistance of counsel, Seventh Amendment right to a jury trial.

“This case also concerns waiver—but not of some fundamental constitutional guarantee. Rather, this case is about … the Employee Retirement Income Security Act of 1974, affectionately (and hereinafter) known as ‘ERISA.’ In particular, this interlocutory appeal requires us to determine whether a defendant is capable of expressly waiving the six-year statute of repose contained in ERISA Section 413,” Newsom wrote. “We won’t bury the lede. In response to the district court’s certified question, we answer yes—Section 1113(1)’s statute of repose is subject to express waiver.”

Newsom went on with a full analysis of Preston’s argument that his rights under the statute of repose were not subject to waiver. The judge said he was drawing on law, logic and common sense.

“Even criminal defendants—in jeopardy of losing life or liberty—‘may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution,’” Newson said. “It would be passing strange—bizarre, in fact—to conclude that while a litigant can renounce his most basic freedoms under the United States Constitution, he is powerless to waive the protection of … ERISA’s statute of repose. No way.”

Preston’s legal team included David Flint, Michael Flint and Andrew Lavoie of Schreeder, Wheeler & Flint in Atlanta. They said Friday they disagree with the Eleventh Circuit and are considering options for appealing to the U.S. Supreme Court.

The government was represented by in-house counsel, including Stephen Silverman in Washington and Angela Donaldson in Atlanta. They could not be reached.

The case is Secretary, U.S. Department of Labor v. Robert Preston, No. 17-10833.