Results matching “Ledbetter”

Lilly Ledbetter, the convention address - PointOfLaw Forum

(Note: Dan Schwartz anticipates the Ledbetter speech and examines pay issues and legislation at Walter Olson's other website, Overlawyered, here. The more light that shines, the better....)

Today is Women's Equality Day, the kind of observance that prompts a presidential proclamation and various didactic exercises among the political classes. Democrats are highlighting the day at the Denver convention with the theme, "Renewing America's Promise," with women union leaders, union activists, and elected officials speaking. On today's convention agenda for a prime evening speaking spot, right before the keynoter, Mark Warner, is Lilly Ledbetter. As the schedule describes her:

Lily Ledbetter

Her actions against Goodyear Tire led to the passage of the Fair Pay Restoration Act

Actually, it's spelled "Lilly Ledbetter." And while the Ledbetter Fair Pay Act, H.R. 2831, did pass the House by a 225-199 vote on July 31, 2007, it was stopped in the Senate in April on a failed cloture vote, 56-42.

Tonight's lead-up, Ledbetter's remarks and the media commentary will no doubt contain similar misrepresentations, with the errors serving the cause of bad legislation that will prevent discrimination claims from being resolved quickly, in the process prompting a new wave of litigation.

The Senate Judiciary Committee has begun its hearing, "Courting Big Business: The Supreme Court's Recent Decisions on Corporate Misconduct and Laws Regulating Corporations." So far, only Chairman Leahy's statement is online, and it embraces the expected criticisms on cases such as Ledbetter, Stoneridge and especially Exxon Valdez. He also lays into the court for "blind devotion to corporation arbitration schemes." Leahy's statement also includes a political narrative:

The Supreme Court has demonstrated its increasing willingness to overturn juries who received the factual evidence and weighed the arguments. Nothing is more fundamental to the American justice system than our trust in the wisdom and judgment of ordinary Americans who serve on juries.

UPDATE: The prepared testimony is now available. Osa M. Schultz provides the perspective of a very angry Alaskan harmed by the Exxon Valdez spills, and she wants high punitive damages. Patricia Ann Millett, a former attorney in the Office of Solicitor General, gives a dispassionate assessment of the Court's opinions and judicial alliances on preemption, arbitration, employment cases and punitive damages.

The target to come under the heaviest fire today was mandatory pre-dispute arbitration, as Harvard Law Professor Elizabeth Bartholet condemned its transformation into a mechanism biased toward corporate interests. In her lengthy prepared testimony, Bartholet cites her experience as an arbitrator dealing with consumer credit card cases for the National Arbitration Forum.

Judging by the witnesses, testimony and his opening remarks, Chairman Leahy regarded today's hearing as especially useful in building the Congressional case against arbitration. The legislation with the most prospects is S. 2838, attacking arbitration in nursing home contracts; the House version, H.R. 6126, is moving quicker, though, having been reported out of the subcommittee last week.

MORE: RTTNews carries a straightforward account of the hearing here. Mayer Brown had a legislative update last week on the anti-arbitration bills moving through Congress, focusing on the effects on international arbitration.


The Senate Committee on the Judiciary has scheduled a hearing on "Courting Big Business: The Supreme Court's Recent Decisions on Corporate Misconduct and Laws Regulating Corporations" for Wednesday, July 23, 2008 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building.

No witness list yet.

Given last week's Capitol Hill rally by liberal women's groups, the Ledbetter decision could certainly be one of the rulings to be criticized.

UPDATE: Guessed wrong, looks like. The witnesses are now listed:

Obama's equal pay gambit - PointOfLaw Forum

In a presumed effort to appeal to female "Clinton voters," Barack Obama today criticized Senator McCain for being unwilling "to stand up for equal pay as president":

Democrat Barack Obama, determined to win over female voters, talked Monday about the women who helped shape his life in arguing that he would be a better proponent of equal pay than Republican John McCain.

The presumed Democratic nominee toured a baking facility and chatted with female workers about their economic challenges.

Sen. Obama told how he was raised by a single mother and his grandmother, who made sacrifices to support their family. He told them that Sen. McCain opposed legislation earlier this year that would have made it easier for women to sue their employers for pay discrimination. Obama supported the bill.

"I'll continue to stand up for equal pay as president -- Senator McCain won't, and that's a real difference in this election," Obama said.

McCain has said he supports equal pay for women but had said the measure would lead to more lawsuits.

The measure in question is none other than H.R. 2831, the "Lilly Ledbetter Fair Pay Act of 2007," with which PointofLaw readers should be very familiar.

As we've pointed out here (and the justices themselves pointed out in Ledbetter), the plaintiff in the epnoymous case could have had a potentially valid suit had her attorney bothered to file under the Equal Pay Act, which remains in force. The legislation Obama supports and McCain opposes is nothing more than a sop to Trial Lawyers, Inc., which would open up decades-old employment actions to judicial review (as well as expanding the scope of potential litigation to non-compensation decisions and the scope of potential litigants to non-employees).

Fortunately, Obama doesn't seem to be arguing his case by reference to his far-more-extreme piece of legislation that would institute national "comparable worth."

More critiques of Riegel v. Medtronic, preemption - PointOfLaw Forum

Senate Judiciary Chairman Patrick Leahy today opened up a committee hearing on the Supreme Court and preemption with an aggressive anti-court, anti-business statement. Excerpt:

[Many] Court observers have noticed that business interests have been the big winners, over workers and consumers. In this worsening economy, mothers and fathers are struggling with health care coverage, the uncertainty of retirement, credit card payments and mortgages. Congress has passed laws to protect Americans in these areas, but in many cases, the Supreme Court has ignored the intent of Congress in passing these measures, oftentimes turning these laws on their heads, and making them protections for big business rather than for ordinary citizens.

Leahy spends some time on the Ledbetter decision, which as far as we could tell was a case of the court clearly understanding Congress' intent in legislating statutes of limitation. Meanwhile, Sen. Russ Feingold (D-WI) highlighted ERISA issues and binding arbitration in his opening statement.

The witnesses (list here) were divided four-to-two against the Court and preemption. The clearest case for federal pre-emption was made by Richard M. Cooper of Williams & Connolly LLP, testifying for himself, focusing on Riegel and the value of federal preemption in food and drug law.

Related items

Eric Posner on Ledbetter Act - PointOfLaw Forum

Slate's Eric Posner provides a devastating rebuttal to the overwrought claims of Dahlia Lithwick about the misnamed Lilly Ledbetter Fair Pay Act. He leaves out an important argument, which I noted for the Justice Talking blog: existing law, the Equal Pay Act, already permits lawsuits with a longer statute of limitations than 180 days, and Ledbetter's suit failed because she used the wrong statute.

Ledbetter: Cloture Fails - PointOfLaw Forum

To finish off the day's posting on H.R. 2831, the Ledbetter Fair Pay Act (earlier posts here and here and here): The Senate voted 56-42 (roll call vote), failing to invoke cloture, which allowed everyone to cast his or her vote for the record. Senator Clinton and Senator Obama were the last two speakers before leadership had its turn.

Majority Leader Reid voted no, preserving his parliamentary options; Senator Kennedy is talking about today's vote being "an early skirmish." All the other Democrats voted yes, as did the following Republicans: Collins and Snowe of Maine, Smith of Oregon, Coleman of Minnesota and Sununu of New Hampshire. All save Snowe are up for re-election this year.

Meanwhile, tomorrow is the vote on the Genetic Information Nondiscrimination Act.

Fair Pay, Fair Play and Fair Limitations - PointOfLaw Forum

Hans Bader of the Competitive Enterprise Institute takes a look at today's Washington Post editorial, "Fair Pay, Fair Play," calling for passage of the Ledbetter Fair Pay Act, and finds certain facts and legal context missing. Again. From the Open Market blog:

The Post seems completely unaware of the existence of another law, the Equal Pay Act, that already has a generous deadline (3 years) for bringing pay discrimination claims.

In Ledbetter v. Goodyear (2007), the Supreme Court enforced the explicit 180-day deadline for bringing discrimination claims under Title VII, ruling that Lilly Ledbetter's pay discrimination suit under Title VII was untimely because she brought it long after 180 days had elapsed. But the court specifically noted in a footnote that the plaintiff had (for unknown reasons) dropped her claim under the Equal Pay Act -- which has a longer deadline (3 years) for suing. Liberal court reporters deliberately ignored the footnote and the very existence of the Equal Pay Act in order to cynically create the false impression that the Supreme Court's enforcing the Title VII deadline as written would leave women without any redress for sex-based pay discrimination after 180 days had passed.

Good legal issues to discuss once the Senate takes up the bill.

As for the political context, from, "McConnell Complains About Delay in Senate Vote So Candidates Can Return." From the minority leader:

Now, look, we understand people have to run for president and are not likely to be here much of the time. But to have the schedule of the Senate completely revolve around the schedule of the Democratic presidential candidates strikes me as particularly ridiculous.

Ledbetter: The Politics of Scheduling - PointOfLaw Forum

The Senate rolls into action at 5 p.m. this evening, thanks to a scheduling maneuver by Senate Majority Leader Harry Reid, D-NV. In order to have the Democratic presidential candidates, Sens. Clinton and Obama, back in town for the cloture vote on H.R. 2831, the Majority Leader had to postpone the usual morning convening, since a cloture vote is supposed to follow one hour after the Senate is called into order.

That's politics and nothing to get too excited about, especially since the tactics make it clear the bill is not intended to become law. No, it's just another way just to measure loyalty to the agenda of organized labor, trial lawyers and various grievance groups. Although....Senate Republican have a point about being cynically criticized for going slow on a veterans benefits bill. Where the demand for alacrity now? (The Swamp from The Baltimore Sun has a good rundown of the machinations, and The Corner relates the Republican objections.)

Just as long as the legislation goes down. Contrary to what editorialists at The Washington Post ("Fair Pay, Fair Play") and the New York Times ("Pass the Fair Pay Act") claim, this bill does not correct a faulty Supreme Court ruling, this bill opens the floodgates to discrimination lawsuits ad infinitum nauseum. As the NAM's Key Vote letter makes clear, statutes of limitations were written into the law for a reason -- one being the prevention of decades of increasingly tenuous employment discrimination suits.

It won't come to that, but the President is indicating a veto. The White House released its Statement of Administration Policy on the bill yesterday, which you can read here. A good statement, emphasizing the value of statutes of limitations.

This legislation does not appear to be based on evidence that the current statute of limitations principles have caused any systemic prejudice to the interests of employees, but it is reasonable to expect the bill's vastly expanded statute of limitations would exacerbate the existing heavy burden on the courts by encouraging the filing of stale claims.

Another Ledbetter Observation - PointOfLaw Forum

In writing about the Ledbetter "fair pay" legislation to be considered in the U.S. Senate tomorrow, we neglected to link to a good analysis of the bill that Ted Frank wrote for NPR's "Talking Justice" blog last February. His conclusion:

Employers are not stupid. To the extent every employee is a potential lawsuit, that is a cost of hiring an employee. As those costs go up, employers will hire fewer employees, and charge "insurance" to the employees they do hire by reducing their wages to account for the possibility of a future lawsuit. If the misnamed "Lilly Ledbetter Fair Pay Act" passes, the vast majority of workers will be worse off, as money that would have gone to pay employees will instead go to pay attorneys. There should be a better reason to pass such harmful legislation than the fact that Ms. Ledbetter's attorney sued under the wrong statute. If Congress really wishes to help workers, they should reject this legislation, and aim a closer eye at the liability system that hurts our economy.

Ledbetter: No Limitations, Just Litigation - PointOfLaw Forum

Cross-posted at Walter has also written on the Ledbetter court ruling and legislation here, here and here.

Senate Majority Leader Harry Reid filed cloture Monday on H.R. 2831, the Lilly Ledbetter Fair Pay Act of 2007, which supporters claim restores the ability of employees to sue for pay discrimination, supposedly abrogated by the Supreme Court's ruling in Ledbetter v. Goodyear Tire & Rubber Co. (U.S. Supreme Court 2007).

As the NAM summary of the case explains, what the court actually did was uphold the law that set a 180-day statute of limations for filing employment discrimination actions with the EEOC. Congress knew what it was doing when it wrote the law, the court said: "Congress clearly intended to encourage the prompt processing of all charges of discrimination." Eliminating a statute of limitations would open up employers to potentially decades of increasingly difficult-to-defend litigation. Memories fade, people die, and yet the lawsuits carry on....and on....

Just as importantly, the 180-day requirement also compels employers and employees both to address real discrimination with a sense of urgency. Sometimes it takes an EEOC complaint to make management aware of a problem.

The legislation goes too far in other ways. The NAM sent a "Key Vote" letter (text here) to the Senate today, which notes, "[The bill] would grant standing for the first time to not just employees but those potentially 'affected by' discrimination. It would also broaden the bill's reach to cover unintentional (disparate impact) discrimination suits and allow retirees to file claims over actions that took place decades earlier." Wow. "Affected by" discrimination -- bet that would be creatively interpreted.

Expect a vote Wednesday, which allows a full day of rallies and fulminating today, Equal Pay Day -- the day that women supposedly have to work into 2008 to equal men's 2007 pay. Organized labor is observing the day, as are the National Organization for Women and other activists who want government to set wages.

The last time Senator Kennedy orchestrated a big vote to coincide with rallies and other observances was in June, when he brought H.R. 800 to the floor. That was the Employee Free Choice Act, labor's No. 1 priority, which would replace secret ballots in union representation elections with the intimidation-inviting card-check process. No one expected the measure to gain cloture -- and it didn't, falling short by a 51-48 vote -- but the Senator maximized the PR value with his timing. Same thing this week with the Ledbetter legislation.

So consider Senate action on this terrible bill to be the raising of a flag as organized labor and a band of employment lawyers watch, marking on their checklists who salutes -- and who will be rewarded and punished accordingly.

Thanks for the Invitation - PointOfLaw Forum

Carter Wood of the National Association of Manufacturers here, taking up Walter Olson's much-appreciated invitation to guest blog. I blog daily at the NAM's site,, where legal reform is a frequent topic.

And I've been following tort reform since my newspaper reporting days in the early '90s, when the North Dakota Legislature debated statutes of repose for the aviation industry. (And Cirrus Design Corp. seems to be doing well. Coincidence?) North Dakota -- that's a "sucker" state according to the Pacific Research Institute's 2008 Tort Liability Index, with the lowest tort costs in the nation but weak laws just waiting to be abused.

In any case, it's a pleasure to have the opportunity, etc. Lots to follow in the week that Ledbetter legislation.

Cert grant in Warner-Lambert v. Kent - PointOfLaw Forum

You may remember the notorious Second Circuit case of Desiano v. Warner-Lambert, where the Court essentially said "We don't like the 9-0 decision in Buckman and are going to find disingenuous grounds to distinguish it." Well, the Supreme Court granted certiorari today, almost certainly so it could reverse. Such a reversal would affect other cases where lower courts have disregarded Buckman, most notably Judge Higbee's Vioxx trials in New Jersey (where she permitted a punitive damages claim forbidden by Buckman to go forward) as well as act as an affirmance for the Texas Ledbetter Vioxx ruling.

Examiner on trial lawyer money in politics - PointOfLaw Forum

The second week of the Examiner's series "Lawyers Gone Wild" is now out, with a focus on trial lawyers' political clout. Included are: "Lawyers use campaign cash to buy friends in high places"; "Donations from lawyers sometimes spell trouble"; and "Main target: Congress is chief beneficiary of Liability lawyers� money". An excerpt from the "Congress" article:

During the past decade, AAJ has spent more than $30 million lobbying Congress and federal executive branch officials, National Journal reports.

Since 2005, AAJ has tripled the size of its communications staffs at the national and state levels, created a Clinton-esque �war room� to coordinate public-relations campaigns and brought in some heavy hitters from the top ranks of Democratic campaign professionals.
...[including campaign strategist Chris Lehane]. Lehane is a well-traveled campaign expert who has specialized in opposition research. The New York Times said Lehane �is such a shrewd practitioner of what one admiring strategist called �the political black arts� that lately, when a negative story appears, rivals point to him.�

From the "High Places" article:

�We are now in attack mode,� Chris Mather, AAJ�s vice president for communications, told National Journal earlier this year....Such contributions [to sponsors of the proposed Ledbetter Fair Pay Act of 2007] help explain why Alabama trial lawyer C. Gibson Vance so confidently told a Washington think tank seminar right after the 2006 election, according to National Journal, that �we are going to get things done.�

"Exhibit A in Painting Court as Too Far Right" - PointOfLaw Forum

The Washington Post documents some of the doings of the great P.R. machine that's geared up to keep the Ledbetter case before the public as a way of demonizing the current makeup of the U.S. Supreme Court. (The usual defenders of judicial independence against oversimplified populist attacks seem to have fallen silent). Still no word about why the Equal Pay Act wouldn't offer a way to sue over current pay differentials, if that's indeed the point of the campaign.

House's anti-Ledbetter legislation - PointOfLaw Forum

The Washington Post has some sympathy for efforts in Congress to overturn Ledbetter v. Goodyear Tire & Rubber, the case where the Supreme Court found a sex discrimination plaintiff had waited too long to sue over pay. Even so, the paper says the House-passed bill goes too far: "[it] would all but eliminate a statute of limitations, which was not Congress's original intent".

Supreme Court bulletin: sky not falling - PointOfLaw Forum

ABC News's Jan Crawford Greenburg:

...some of the liberal commentary on the Court since the justices packed up and left town has been almost breathtaking in its over-the-top hysteria. That does no one any favors: not liberals or conservatives � and certainly not the Court itself.

Greenburg proceeds to criticize Oklahoma lawprof Joseph Thai, Chicago lawprof Geoffrey Stone and (inevitably) Times editorialist Adam Cohen for "tabloid-style, Jerry Springer-esque" denunciations of the Roberts Court that evoke "Chicken Littles with their hair on fire", or perhaps a "wrestling smack-down". Both Thai and Cohen, she writes, overstate the significance of the Ledbetter decision on pay challenge time limits, "basically a reprise of a 20-year old decision written by Justice Stevens that had ruled against another woman on essentially the same grounds". Beyond that, many of the "pro-business" decisions denounced by the two were decided by margins wider than 5-4, or in other ways didn't track the liberal-conservative divide on the court ("Both Thai and Cohen write about how the court put limits on punitive damages in the Philip Morris case � and both conveniently fail to mention how the justices voted.") And that's aside from Thai's "preposterous" interpretation of the taxpayer standing case involving a challenge to expenditures on faith-based programs, and his claims that the Court has "made it dramatically more difficult, if not impossible, for ordinary Americans to have their day in court," which, writes Greenburg, "cannot be taken seriously."

Patterico has some further thoughts.

Around the web, Jun. 17 - PointOfLaw Forum

Supreme Court enforces pay-bias deadline - PointOfLaw Forum

By a 5-4 margin in Ledbetter v. Goodyear Tire and Rubber (PDF), the Supreme Court has ruled that the 180-day deadline for filing a discrimination lawsuit cannot be stretched to serve as the basis of the filing of suits today based on the lingering effects of employment decisions taken years ago. Hans Bader at CEI asks a question some major news organizations didn't seem to think worth asking: why didn't Ms. Ledbetter choose to sue under the Equal Pay Act, a separate federal statute that might have seemed more directly helpful in staking her complaint? And James Taranto seeks to vindicate the character of former Justice O'Connor from the insulting presumption that she would reflexively have voted in favor of a female plaintiff in an employment-bias case.

P.S. More at Volokh, from David Bernstein and Orin Kerr. Hans Bader has more on the O'Connor angle, noting that "Justice O�Connor rigorously enforced statutes of limitations, and she wasn�t the swing-vote on the Supreme Court in statute of limitations cases. A man, Justice Clarence Thomas, was." And Carolyn Elefant notes reactions from Profs. Secunda (critical of the majority reasoning) and Runkel (finds majority persuasive). The New York Times reacts, as is its wont, with an overwrought and silly editorial.

Ledbetter v. Merck - PointOfLaw Forum

As earlier reported last week [WSJ Apr. 13; WSJ Law Blog], a Harris County judge has thrown out Ledbetter v. Merck's failure-to-warn claim and stayed 1300 or so other Vioxx cases pending appeal. (Ledbetter herself has other claims pending; the press coverage inaccurately states the entire set of cases are gone.) Contrary to some press and blog reports, the judge's decision, released earlier today, was made not based on the FDA preamble statement to its new disclosure rule, but based on a 2003 Texas statute, Tex. Civ. Prac. & Rem. Code Ann. �82.007, that was apparently ignored by the last two Texas state judges to consider Vioxx cases. (It's possible that the statute doesn't apply to those two cases if they were filed before the statute became law in 2003.) The Texas statute has an exception for fraud-on-the-FDA, but that is preempted by federal law—not by the FDA's recent regulation, but by the U.S. Supreme Court in Buckman, 531 U.S. 341 (2001), which held that fraud on the FDA was a federal inquiry that could only be resolved by federal officials. [Merck press release; WSJ Law Blog]

We'll see what the Texas Supreme Court has to say down the road, but a plain-language reading of the statute would appear to support the claim that all of the Texas failure-to-warn cases against Merck must be dismissed. One would think that this is fatal reversible error in the two multimillion-dollar Texas plaintiffs' verdicts in Garza and Ernst, if those cases were filed after the statute was passed in 2003.

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