At its Conference on April 3, 2015, the Court will consider petitions seeking review of issues such whether an employee’s right to join a collective action under the Fair Labor Standards Act is waivable, the elimination of same-day voter registration in North Carolina, and severance provisions in arbitration agreements.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.


Issue(s): (1) Whether an employee's right to join a collective action under the Fair Labor Standards Act (FLSA) is waivable (as the Second, Third, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits have held) or non-waivable (as the Sixth Circuit held here); and (2) whether employees make “sales” within the meaning of the FLSA when they work entirely on commission based on orders that they “write and transmit” to replenish a customer's inventory, but do not singlehandedly cause sales volume to increase.


Issue(s): Whether the Florida Supreme Court's prejudice analysis – notwithstanding grave deficiencies in counsel's development and presentation of mitigating evidence – can be squared with Strickland v. Washington and subsequent decisions of this Court applying Strickland's prejudice standard.


Issue(s): (1) Whether the court of appeals erred by effectively incorporating into Section 2 of the Voting Rights Act the retrogression standard applicable only to Section 5 of the Voting Rights Act; and (2) whether the preliminary injunction ordered by the Fourth Circuit subjected North Carolina to a de facto preclearance standard in derogation of North Carolina’s constitutional prerogative to enact laws governing the time, place and manner of holding elections.


Issue(s): (1) Whether there is a non-textual “integrality exception” to the mandatory requirement in the Federal Arbitration Act (FAA) that a substitute arbitrator “shall” be appointed by the court whenever the parties' chosen arbitrator is unavailable for "any … reason"; and (2) whether a court may void an entire arbitration clause – and force the parties to litigate in court – despite the fact that the parties included a severance provision that, if applied, would render the arbitration clause enforceable.


Issue(s): Whether 22 U.S.C. § 8772 – a statute that effectively directs a particular result in a single pending case – violates the separation of powers.


Issue(s): (1) Whether the Ninth Circuit erred when it held that petitioners are subject to antitrust suits seeking injunctive relief against the foundational terms of a decade-old standard setting and technology licensing arrangement for as long as third parties continue to make sales of goods embodying that technology; and (2) whether the Ninth Circuit erred when it treated its statute of limitations analysis as dispositive on the issue of laches, without considering the broader equitable issues associated with permitting challenges to long-settled business arrangements.

Posted in Cases in the Pipeline

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of April 3, SCOTUSblog (Apr. 3, 2015, 2:00 PM),