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Posts Tagged ‘David Weisenfeld’

Challenge to Health Care Law Flying Under the Radar

Tuesday, August 2nd, 2011

Image: David WeisenfeldSummer is a sleepy time at the Supreme Court as most of the justices exit the scorching Washington heat.  Justice Stevens was known to keep busy on the tennis court while Justice Thomas often heads around the country in his RV.  As for Justice Kennedy, he regularly teaches abroad and others hit the speaking circuit.

So the quiet period between late June and the first Monday in October, when the annual case argument schedule begins, presents vacation opportunities for those who cover the Court as well.  But while little attention is paid to the Court during its annual “siesta,” appeals can and do get filed during this lull.

Amidst the hoopla over the debt-ceiling crisis, one of those appeals not surprisingly went almost unnoticed.  In fact, it rated no better than a minor story on page A-18 buried in a recent edition of The New York Times.  This appeal, though, will be front-page news if the justices choose to accept the case.  That’s because it marks the first legitimate challenge to the new health care law, the Patient Protection and Affordable Care Act.

On July 27th, a petition was filed challenging a recent Sixth Circuit decision which upheld the constitutionality of the law.  The 2-1 decision was notable because the Cincinnati-based appellate court tends to be conservative, and one of the judges in the majority was Jeffrey Sutton, a one-time law clerk with Justice Scalia.

While there have been a number of federal district court rulings on the health care law in the past year, the Sixth Circuit stands by itself as the lone appellate court to have addressed the issue.   The Supreme Court typically agrees to hear a case only after there has been a circuit split among the appellate courts.  But that does not mean the health care law’s supporters should take comfort that the justices will necessarily sidestep this appeal.

Cases such as Citizens United and the more recent Wal-Mart opinion are clear examples of the Court reaching out to decide hot-button disputes in the absence of a circuit split.  And Chief Justice Roberts’ famed line about “wanting to decide cases on the narrowest grounds possible,” has not always matched his record or that of his colleagues.  That’s a fact of which the appellants are well aware.

So there is reason to believe the Supreme Court could wade into the health-care controversy, and sooner rather than later.  In fact, if the justices decided to grant this challenge, a ruling could come down late next spring as the 2012 presidential campaign season approaches its apex.

If there is one thing I learned from covering the Court for more than a decade, it is that predicting outcomes there is sometimes only slightly easier than taking your chances in Las Vegas or Atlantic City.  Few people are privy to what the justices really feel, and journalists are hardly among them.

But if the justices upon their return to Washington take up the appeal of this Sixth Circuit ruling in the absence of a conflict, chances are they are not doing so to affirm the outcome.  No matter what the result, however, it will have obvious ramifications for what health plans employers offer to their employees going forward.

Supreme Court review of some sort on the health care law eventually seems inevitable.  But if it happens at this still relatively early juncture, another partisan battle is a near certainty.  And things at the nation’s highest court will be quiet no longer.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011.  During that time, he covered every employment law case heard by the Court, and also wrote and co-anchored the company’s employment law newscasts.  In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

Octogenarian Manager Strikes Blow Against Age Bias

Wednesday, June 29th, 2011

David WeisenfeldThe Florida Marlins hiring of 80-year-old Jack McKeon on June 20 to manage their team for the remainder of the baseball season was greeted with widespread ridicule.  Sports-talk radio hosts on WFAN 660 in New York mocked the Marlins, and others were quick to do so as well.  No one other than the legendary Connie Mack, who also owned his team, has ever been an older manager.

But turning the ill-informed criticism aside, McKeon’s qualifications were beyond reproach.  In 2003, at age 72, the Marlins hired McKeon in May while similarly mired in last place.  All he did that year was lead the young Marlins to a World Series Championship which included upset playoff victories over the heavily favored Chicago Cubs and New York Yankees.

In both series, the Marlins won the clinching games on the road at Wrigley Field and Yankee Stadium.  That made McKeon only the second manager in baseball history to take over a team at mid-season and lead it to a championship.

McKeon followed up that performance by leading the Marlins to winning seasons in both 2004 and 2005 despite the fact that the squad had one of the lowest payrolls in all of baseball.  He then retired as manager, but has remained active as a consultant to the team’s ownership.

Known as “Trader Jack” from his days as a baseball general manager, McKeon assembled the San Diego Padres team which won the 1984 National League pennant.  He also experienced success managing the Cincinnati Reds in leading the team to a one-game playoff, which it lost, in 1999.  Another winning year followed in 2000.  For his efforts, McKeon was fired.  After his exit, the Reds went a decade before finally having another season where they won more games than they lost.

Clearly, McKeon is a guy who knows what he is doing.  He also enjoys a well-earned reputation for getting players to earn his respect and play hard for him.  So the question really isn’t why the Marlins opted to hire McKeon, but why not?  After all, what other candidate would have had a more impressive background?

And yet, the ageism in so many of the comments about McKeon’s hiring was striking.  You may or may not want an octogenarian fighter pilot.  But managing a baseball team requires acumen, decisiveness and the ability to deal with people, all skills which the Marlins new manager possesses in great measure.

When the Boston Red Sox hired then 28-year-old Theo Epstein as the team’s general manager eight years ago, less was made of the inexperienced Epstein’s age than was the case with McKeon.  Epstein ultimately proved to be a great hire as well in one of the most difficult media markets in the country.  All he did was help end the infamous “Curse of the Bambino” as the Red Sox won two World Series titles in a four-year span.  The first of those titles ended an 86-year drought.

The take-away message is that young or old, it is the quality of the job candidate that matters most—not their age.  There are many other Jack McKeons out there who could still be making strong contributions in a wide variety of positions if given the chance.

At the Supreme Court, Justice John Paul Stevens retired last June at the age of 90.  Until the end, Stevens was an adept writer and questioner.  He also regularly was more engaged during oral arguments than some of his colleagues, including Justice Clarence Thomas who was 30 years his junior.

Age is just a number.  Every person is different, and must be judged on their individual merits rather than by arbitrary stereotypes.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011.  During that time, he covered every employment law case heard by the Court, and also wrote and co-anchored the company’s employment law newscasts.  In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

Why Wal-Mart Matters, But Perhaps Less Than You Think

Tuesday, June 21st, 2011

David Weisenfeld

The Supreme Court’s landmark decision on Monday in Wal-Mart v. Dukes understandably garnered front-page headlines in the nation’s newspapers. After all, the case was the largest employment discrimination case in history, dwarfing all other competitors by far with its potential to have included more than one-million current and former female Wal-Mart employees.

But in reality, this mammoth pattern and practice class action was decided December 7, 2010. That’s the day the Supreme Court agreed to hear the dispute. The women who brought this 10-year-old case had won every step of the way. In fact, Ninth Circuit Judge Susan Graber said in her 2010 concurrence in one of the plaintiffs’ victories, “There is nothing unique about this case except for its size.”

As it turned out, however, size mattered. There was no direct circuit split on this issue. Indeed, there was no other case that was truly directly on point. So when the Supreme Court decided to wade into the fray, there was no chance it was doing so to pat the West Coast appellate court on the back for a job well done. Instead, the Court was going to place limits on class actions.

Lead plaintiffs’ counsel Brad Seligman fought hard and fought well throughout this ten-year-old litigation. But a case that could have led to billions of dollars in litigation was going to face a difficult hurdle at the nation’s highest court, and it did. The cries that plaintiffs now cannot proceed in employment class actions, however, could be premature.

The Wal-Mart case included hourly greeters, company vice presidents earning six figures, and female employees in all sorts of jobs between those extremes. The claim by the plaintiffs’ attorneys that Wal-Mart provided “unchecked discretion” to its managers was one that swing voter Anthony Kennedy undoubtedly found difficult to square with the allegation that the company had a top-down culture of discrimination emanating from Wal-Mart’s Arkansas headquarters.

In fact, during the oral arguments Justice Kennedy said as much when he wondered aloud what the unlawful policy was. “It seems to me there’s an inconsistency there,” he said. “If it’s standardless and recordless, then why is there commonality?” If there was any doubt as to the outcome, that comment and question put it to rest.

This was less a case of Wal-Mart being “too big to sue” than the majority of the justices wondering how 1.5-million women at 3,400 stores in widely divergent positions could have something in common besides their gender.

The opinion was notably silent, however, about whether or not the retailer had engaged in sex discrimination. And, it leaves open the possibility of smaller groups of employees banding together, ideally from similar job classifications.

Wal-Mart’s attorney Theodore Boutrous said immediately following the decision, “Under [this] ruling, the way we read it, no class can be certified in this case.” But that seems to be more than a bit of hyperbole.

Will it be tougher for plaintiffs to proceed? Unquestionably. And when they do so, the litigation will be much smaller in scope. But the women and those who represent them have vowed to continue fighting Wal-Mart over what they see as unequal treatment. Smaller class actions against other big companies have succeeded before and likely will again. Those cases just need to be more focused than ever on complying with the Supreme Court’s call for commonality among class members.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011. During that time, he covered every employment law case heard by the Court including Wal-Mart v. Dukes, and also wrote and co-anchored the company’s employment law newscasts. In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

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