Kirkland & Ellis partner Paul Clement, along with the Trump administration’s U.S. Justice Department, is expected to argue next month in a closely watched trio of U.S. Supreme Court cases that question whether workplace arbitration agreements that ban class actions violate federal labor laws.
The former George W. Bush administration U.S. solicitor general was tapped to represent the three companies defending the bans. The companies and their lawyers were apparently at an impasse over which of their original high court lawyers should make the Oct. 2 arguments.
Supreme Court veteran advocates Neal Katyal of Hogan Lovells and Kannon Shanmugam of Williams & Connolly got Clement to take the case. Katyal represents Murphy Oil in National Labor Relations Board v. Murphy Oil and Epic Systems in Epic Systems v. Lewis. Shanmugan is counsel of record in Ernst & Young v. Morris.
Clement was not reached for comment, and Katyal and Shanmugam declined to talk about the lawyering in the case. Evidently the two attorneys did not use a coin toss to decide who’d argue the case.
“We are pleased that Paul Clement will be arguing these cases on behalf of Ernst & Young, Epic and Murphy USA,” an Ernst & Young representative said in a statement Monday.
The three cases have been consolidated for one hour of argument. Acting Solicitor General Jeffrey Wall, in a motion last month seeking divided argument time, informed the justices that the companies agreed to cede 10 minutes of their 30 minutes of argument time to the government.
The National Labor Relations Board and the employees in the case contend that the bans on class or collective actions violate the National Labor Relations Act because they restrict employees’ right to engage in “concerted activities.” Labor unions, Public Citizen, NAACP Legal Defense and Educational Fund, 16 states and the District of Columbia, among others, have filed amicus briefs supporting the board and the employees.
Business organizations, including the U.S. Chamber of Commerce, National Association of Manufacturers, Business Roundtable, DRI-The Voice of the Defense Bar, and the Mortgage Bankers Association, submitted briefs supporting the three companies in the case. They and the Justice Department contend that the arbitration agreements with class action waivers are fully enforceable under the Federal Arbitration Act.
The NLRB’s general counsel, Richard Griffin, recently told the Supreme Court that he and counsel for all the private parties agreed that Griffin and Daniel Ortiz of the University of Virginia School of Law will share argument time: 20 minutes for Griffin and 10 minutes for Ortiz. Griffin’s term as NLRB general counsel ends this year.
The high court granted review in the three cases in January. At that time, the Obama administration’s Justice Department supported the position of the National Labor Relations Board. Six months later, in a June amicus brief, the Trump administration’s Justice Department told the high court it had changed positions.
“Although the board’s interpretation of ambiguous NLRA language is ordinarily entitled to judicial deference, courts do not defer to the board’s conclusion as to the interplay between the NLRA and other federal statutes,” Wall wrote in court papers. “We do not believe that the board in its prior unfair-labor-practice proceedings, or the government’s certiorari petition in Murphy Oil, gave adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA.”