10 November 2015
A closely watched employment case got a boost of legal firepower this week as it heads toward a possible en banc hearing before the U.S. Court of Appeals for the Ninth Circuit or Supreme Court review.
Mayer Brown partner Andrew Pincus, a prominent appellate lawyer who has argued two dozen cases in the Supreme Court, stepped in Monday as lead counsel for eyewear retailer Luxottica Retail North America Inc. The company, which owns Sunglass Hut and Lenscrafters as well as several designer brands, must file its petition for en banc review by Wednesday.
Luxottica suffered a major loss before the Ninth Circuit in September in a case with significant implications for employers in California. A three-judge panel ruled, 2-1, that the right to pursue claims under California's Private Attorney General Act cannot be waived as part of a workplace arbitration agreement. The decision struck a blow to companies that favor individual arbitration, as it allows plaintiffs lawyers to continue using PAGA claims as a way around employers' class and representative action bans.
The case has drawn widespread interest from the business community, and Pincus represented the U.S. Chamber of Commerce as amicus curiae during the June oral arguments. Appellate lawyers watching the case say the switch suggests Luxottica has its eye on the Supreme Court and wants to frame the legal question as one with broad ramifications for businesses and arbitration.
Jeffrey Wall, co-head of Sullivan & Cromwell's appellate practice, will represent the Chamber in Pincus' stead. Kyle Nordrehaug of California employment firm Blumenthal Nordrehaug Bhowmik represents plaintiffs.
Littler Mendelson shareholder Keith Jacoby, who argued for Luxottica in June, said his firm will be working with Pincus on the case. He confirmed Tuesday afternoon that Luxottica intends to file a petition for en banc review, but declined to comment on whether the case might go up to the Supreme Court.
"Mr. Pincus is an experienced Supreme Court advocate," Jacoby said, "and we're very happy to have him on the team."
Pincus has a long Supreme Court resume, including representing AT&T in the landmark AT&T Mobility v. Concepcion. That earned him a shout-out during the Luxottica arguments from Ninth Circuit Judge Milan Smith, who said he assumed Pincus knew "all things Concepcion."
Reprinted with permission from the November 10, 2015 edition of The Recorder © 2015 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.