Latest 3 Cases: Dylan 140 LLC v. Figueroa (Arbitration & Mediation), Windward Bora, LLC v. Wilmington Savings Fund Society (Government & ...

Trump’s Lawyers Will Get Away with Facilitating His Anti-Democratic Antics and They Know It

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—predicts that because the lawyer discipline process is broken, President Trump’s lawyers will get away with facilitating his anti-democratic misconduct. Professor Sarat notes that Lawyers Defending American Democracy (LDAD) released a letter calling on bar authorities to investigate and punish members of Trump’s post-election legal team, but he points out that while LDAD can shame those members, it still lacks the ability itself to discipline or disbar.

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Dylan 140 LLC v. Figueroa

Docket: 20-461

Opinion Date: December 10, 2020

Judge: Debra Ann Livingston

Areas of Law: Arbitration & Mediation, Labor & Employment Law

Dylan filed suit in district court seeking a declaration of its rights and obligations under the terms of a collective bargaining agreement (CBA). The district court converted defendants' motion to dismiss into a motion to compel arbitration and granted the motion, dismissing Dylan's complaint without prejudice. The Second Circuit affirmed the district court's dismissal; clarified that the district court had federal question jurisdiction to decide whether Dylan was entitled to the declaratory relief requested; and held that, because the Funds have adequately initiated arbitration, regardless of timing, Dylan is required to arbitrate by the terms of the CBA. The court also agreed with the district court's analysis that it was proper in this case to compel arbitration and dismiss Dylan's complaint without prejudice. The court considered Dylan's remaining arguments and found them to be without merit.

Windward Bora, LLC v. Wilmington Savings Fund Society

Docket: 19-3626

Opinion Date: December 10, 2020

Judge: Per Curiam

Areas of Law: Government & Administrative Law

The Second Circuit affirmed the district court's grant of summary judgment in favor of Wilmington Savings in an action seeking to quiet title and discharge a mortgage under New York law. Windward Bora argues that New York's six-year statute of limitations has expired as to any foreclosure action under the mortgage and Wilmington Savings argues that it is immune from this statute of limitations by virtue of its status as an assignee of the U.S. Department of Housing and Urban Development (HUD). The court joined its sister circuits in concluding that assignees of the federal government are entitled to its immunity from state statutes of limitations. These courts generally reason, and this court found persuasive, that under traditional common law principles governing assignments, "the assignee of the United States stands in the shoes of the United States and is entitled to rely on the limitations periods prescribed by federal law." Moreover, this result is warranted "because it improves the marketability of instruments held by the United States, thereby giving the United States greater flexibility in monetizing its claims." The court also concluded that Wilmington Savings is entitled to such immunity here and rejected Windward Bora's contentions to the contrary. In this case, Wilmington Savings' status as a HUD assignee offers a sufficient basis for affirming the district court's conclusion that Wilmington Savings is immune from the state limitations period.

Time Warner Cable of New York City LLC v. National Labor Relations Board

Docket: 18-2323

Opinion Date: December 10, 2020

Judge: Leval

Areas of Law: Labor & Employment Law

Time Warner petitions for review of a Board ruling that Time Warner committed an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act by coercively interrogating employees about communications leading to an unprotected demonstration and work stoppage that contravened the no-strike agreement between Time Warner and the Union. The Second Circuit held that the Board's standard, interpreted to prohibit Time Warner from coercively questioning employees who participated in an unprotected work stoppage about any communication prior to the stoppage except to identify actual participants, represented an unexplained and unjustified departure from the Board's precedents. The court explained that the portion of the Board's standard requiring that in coercive questioning, employers "focus closely" on unprotected activity where it might touch on protected activity has a reasonable basis in law, but the Board's requirement that an employer "minimize" intrusion into Section 7 activity in such questioning, at least as understood by the Board in this case, does not. Because the Board's enunciated standard, at least as applied here, lacks a reasonable basis in law, the court vacated the Board's ruling and remanded for further proceedings. On remand, the Board should determine, employing a standard consistent with its precedent, whether Time Warner's questioning interfered unreasonably with employees' rights protected by Section 7.