The Ethics Committee of the Alaska Bar Association has addressed this issue:
The question presented here is whether an attorney pursuing an insurer’s subrogated claim at the request of the insured may also be said to “represent” the insurer for purposes of the Alaska Rules of Professional Conduct, at least in the absence of an express […]
Post-deadline amendment of pleading: In an FMLA lawsuit, Judge Ralph Beistline has denied the employee-plaintiff’s motion to add claims of breach of the implied covenant. Beistline applied Civil Rule 16(b)(4) rather than Civil Rule 15(a) because the employee filed the motion after the pre-trial order’s deadline for amendments. Kinney v. Holiday Companies, 3:07-cv-0147-RRB (D.Alaska Order […]
The Alaska Supreme Court (per Justice Winfree) has held that a disciplined employee may look to the employer’s subsequent discipline of other employees for comparison under the objective wing of the covenant of good faith and fair dealing. In so ruling, the Court relied on Title VII caselaw. Because the trial judge (Richard Erlich of […]
The 9th Circuit has affirmed a trial court judgment that an employer lost its EPLI coverage for failure to disclose earlier harassment and discrimination claims. The panel applied California insurance law.
Admiral Ins. Co. v. Debber, 2008 WL ________ (9th Cir. Sept. 26, 2008)
The 9th Circuit distinguishes between issue exhaustion and remedy exhaustion, and decided this morning that ERISA requires the latter but not the former. Thus, a participant’s failure to argue reasons in an internal appeal does not prevent her or him from arguing thsoe reasons before the District Court.
The majority held:
Because ERISA and its implementing regulations create […]
The Court today vacated its August 22nd memorandum opinion in Gray v. Rent-a-Center, earlier discussed here, presumably because the parties settled the matter.
The 9th Circuit has consolidated three appeals and issued a broad-ranging opinion on the attorney fees methodology it reads in Gisbrecht v. Barnhart, 535 U.S. 789 (2002). It affirmed awards below those dictated by the contingent fee contracts in the cases.
The majority held:
We read Gisbrecht not to prohibit a district court from making lodestar-type calculations, but only from […]
“Mitigating Measures” No Longer To Be Considered In Determining Disability
The Americans with Disabilities Act (ADA) has been amended to overturn restrictive Supreme Court rulings and restore the law’s original promise to people with disabilities.
The law’s effective date is January 1, 2009.
The ADA-AA was Congress’s response to the Supreme Court’s stringent construction of the terms […]
Joe van Treeck worked for Matanuska Maid from 1985 until July 2007, the last 21 years as CEO and COO. Last summer he either resigned or was fired by the new Creamery Board appointed by Gov. Sarah Palin. Stories about the controversy appeared at the time in the Anchorage Daily News and, more recently, in the September 16th […]
Three of today’s unpublished opinions resolve employment law issues.
Attorney fee award against Title VII plaintiff: The 9th Circuit has affirmed Judge Ralph Beistline’s refusal to grant a losing Title VII plaintiff’s Rule 60(a) motion to set aside a substantial fee award. Raad v. Fairbanks North Star Bor. Sch. Dist., 2008 WL _______ (9th Cir. Sept. 24, […]
Don Mitchell blogs on AG Talis Colberg at Alaska Dispatch.
And Peggy Roston blogs on Post-Separation Financial Support for Your Children at her Alaska Divorce Blog.
The 9th Circuit has affirmed Judge Russel Holland’s refusal to invalidate federal subsistence permits for Christochina residents to hunt moose.
State of Alaska v. Federal Subsistence Board, 2008 WL _______ (9th Cir. Sept. 23, 2008)
Michael Seawright, Anchorage AAG, represented the State, and James Lister of Birch Horton represented the intervenor Kenai Sportfish Association. Ellen Durkee, AUSA […]
The 9th Circuit has held that the employer’s ability to modify the vesting of early retiree health benefits deprived the retirees of standing, and thus deprived the District Court of subject matter jurisdiction over their claim of wrongful termination of those benefits.
the district court was correct in concluding that the early retirees’ health benefits are not vested. The […]
Troopergate and the law: The website for the Liberty Legal Institute, which is co-counseling (with Kevin Clarkson) the Anchorage lawsuit against the Legislative Council, is here. It does not link to the Complaint itself, which I’ve not been able to find on-line.
I earlier linked to the Complaint in the Fairbanks lawsuit against the Council, which may also be […]
Long time Alaska resident and Pioneers of Alaska member, William “Bill” Boggess, age 87, passed away at Fairbanks Memorial Hospital on September 13, 2008, after a brief illness. Bill was born June 30, 1921, at Wolfe Lake, Indiana to John and Viola Boggess. He graduated in 1939 from Huntington High School.
While attending Ball State College, the bombing […]
The 9th Circuit, this Friday morning, held:
This case requires us to consider whether a former employee who has received a full distribution of his or her account balance under a defined contribution pension plan has standing as a plan participant to file suit under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. […]
The 9th Circuit has held that LTD eligibility is usually unrelated to the employee’s previous compensation level. It’s also held that a plan that arbitrarily terminates LTD benefits must pay benefits for the interval until the plan properly terminates the benefits, even if, on redetermination, it turns out that the employee wasn’t eligible for the benefits […]
The 9th Circuit has addressed “whether or not a participant to an ERISA regulated Qualified Joint and Survivor Annuity (”QJSA”) plan may change the surviving spouse beneficiary after the participant has retired and the annuity has become payable.” The panel held
QJSA surviving spouse benefits irrevocably vest in the participant’s spouse at the time of the […]
The 9th Circuit has rejected preemption-based facial challenges to Arizona’s law that revokes state business licenses of employers who hire illegal aliens.
Chicanos Por La Causa, Inc. v. Napolitano, 2008 WL ________ (9th Cir. Sept. 17, 2008)
“I’m offering up my innocence here.
Please don’t repay me with scorn.”
That’s good. That’s Jerome Juday, at Alaska Law Blog, discussing the 9th Circuit’s recent opinion on mergers & acquisitions, in Western Filter Corp. v. Argen.
Paul Bratton at Alaska Backwoods Lawyer discusses Alaska’s lemon law.
Richard Vollertsen at Alaska Injury Law discusses the (in)effectiveness of arthroscopy.
And Peggy Roston at […]
Six Interior Alaska residents, including former Republican Representative Bob Bettisworth, Fairbanks attorney Tom Temple, and local businessperson Jim Dodson, have sued Special Counsel Stephen Branchflower and the Alaska Legislative Council. Their suit in Fairbanks Superior Court seeks ”to secure their rights as taxpayers and citizens of the State of Alaska to be free from unauthorized, wasteful, and unlawful […]
The federal “Anti-Gag Statute” is a budgetary provision that forbids the appropriation of funds “to implement or enforce the agreements in Standard Forms 312 and 4414 of the Government or any other nondisclosure policy, form, or agreement” unless a specific disclaimer is added. Pub.L. No. 109-1155, § 820, 119 Stat. 2396, 2500-2501 (2005).
The 9th Circuit […]
Almost every employment case eventually results in a side battle over mitigation of damages: Has the terminated employee done a reasonable job of trying to find new employment? Plaintiff lawyers tell new clients that they must look for work, and advise them to keep track of their efforts to find work. Management-side lawyers routinely insert an affirmative defense of […]
The Legal Times interviewed Andy Harrington, ALSC Executive Director, on his interview with Gov. Sarah Palin for the spot on the Alaska Supreme Court that went to Dan Winfree. The Times article includes quotes from another Alaska applicant who apparently declined to identify her or himself.
All the papers presented at the annual conference of the ABA Labor and Employment Law Section are now available on-line.
Included are reviews of issues such as Workplace Investigations, Negotiating Employment and Separation Agreements, FLSA Developments, and ERISA Developments.
These are excellent (and free) resources.
H/T: Connecticut Employment Law.
At Alaska Law Blog, run by Atkinson Conway, Jerome Juday continues to hyperventilate, this time about the Alaska Supreme Court and premises liability:
I hate to be one of those guys who says “I told you so!” So as I read the latest opinions from the Alaska Supreme Court, I started sweating. Then my mouth hung open. Just […]
The spotlight on Gov. Palin reveals employment law issues almost daily.
Alaska state per diem: The Washington Post ran a story on Gov. Sarah Palin’s receipt of per diem during time she spends in Wasilla. Work Professor links to the WaPo story, and analyzes the employment law issues. Byron York defends Palin’s receipt of per diem on […]
U. S. District Judge Timothy Burgess has dismissed a former University of Alaska student’s Section 1983 claims against the University and a lender. The ex-student alleged that the University had misapplied (or “stolen”) part of his student loan, and that the lender had required him to repay the entire loan despite its alleged knowledge of the […]
The 9th Circuit this morning, per Judge Tashima, has held that the EEOC may continue to subpoena documents from an employer even after the issuance of a Right to Sue letter.
We consider three issues pertaining to Federal Express Corporation’s (”FedEx”) refusal to comply with an administrative subpoena issued by the Equal Employment Opportunity Commission (”EEOC” […]
The current investigation informally called Troopergate has focused attention on a little known Alaska state agency. The Alaska Personnel Board has received two complaints about Governor Sarah Palin’s conduct, one filed by Palin herself, and one filed by the union for the Alaska State Troopers.
The Alaska Personnel Board administers complaints under the Alaska Ethics Act, AS 39.52. […]
The 9th Circuit has issued a third Order to Show Cause to the Department of Justice in the interlocutory appeal in the prosecution of former Rep. Bruce Weyhrauch of Juneau. The series of orders explores the authority of the DOJ attorneys certifying the matter as fit for an immediate appeal under 18 USC § 3731. The […]
To my list of favorite writers of modern police procedurals (Michael Connelly and James Lee Burke), I must now add Robert Crais, having made my way through The Forgotten Man, The Two Minute Rule, The Watchman, and The Last Detective this summer.
What links these three writers together? Their protagonists are morally complex characters with difficult […]
The 9th Circuit has reviewed a state employee’s rights under the Uniformed Services Employment and Reemployment Rights Act of 1994, and held that “a federal district court lacks jurisdiction over a USERRA action brought by an individual against a state and that USERRA does not create a cause of action against state employee-supervisors.”
Because I represented one […]
The Alaska Personnel Board adjudicates complaints against Executive Branch employees under the Alaska Ethics Act. Gov. Sarah Palin has filed a complaint against herself, and now PSEA has filed one concerning the release of information about AST Mike Wooten.
The Personnel Board is composed of three members appointed by the governor. The Director of the Division of […]
Troopergate has now intersected with Alaska employment law.
The union for Alaska State Troopers has asked that the State to investigate the disclosure of personnel information about Trooper Mike Wooten. The letter from the Public Safety Employees Association states:
A review of the transcript of the conversation baetween Frank Bailey, Director of Boards and Commssions, Office of the Governor, […]
Did the 2005 amendments to Alaska’s Wage and Hour Act, adopting the federal regulation definitions for the white collar exemptions, also adopt the federal burden of proof concerning exemptions? What is the prevailing federal standard - preponderance or “clear and convincing”? Was the discussion in Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 884 (Alaska 2004), concerning […]
Several employees filed an action that combined an opt-in FLSA collective action with multiple individual state law overtime claims. When the case approached trial without any Rule 26 damages disclosures from the unnamed class members on either their FLSA or state law claims, the employer moved for exclusionary sanctions.
The trial court granted the motion, and excluded damages […]
Arbitration: Anchorage arbitrator Robert Landau has issued his award in a work assignment case arising in Seward. Landau held that the dispute was not mooted by a technological change that the employer could deactivate. On the merits, Landau held that the employer had violated the CBA by assigning an operator/mechanic instead of a lineman to assist with the […]
The 9th Circuit panel that sat in Anchorage on August 7th has resolved another appeal.
A parent sued the Alaska Department of Education and Early Development under the federal Individuals with Disabilities Education Act, alleging that DEED had violated IDEA when it refused to accept an unsigned administrative complaint. District Judge Ralph Beistline dismissed the suit without prejudice, and awarded attorney […]
The Alaska Judicial Council has released a survey of judicial applications and appointments from 1984 through 2007.
Among the Council’s findings are these:
• A higher percentage of applicants are women, tracking a similar change among the Alaska bar membership. The percentage of women nominated tracked the percentage at which they applied, but the percentage of women appointed has […]
The 1991 civil rights amendments included the Government Employees Rights Act, which protected state political appointees from employment discrimination based on sex, age, etc. The issue now before the 9th Circuit on rehearing en banc is whether Congress failed to abrogate the states’ 11th Amendment immunity when it relied on earlier congressional findings that didn’t […]
Gov. Sarah Palin has appointed Joel Bolger to the vacancy on the Court of Appeals created by Dave Stewart’s retirement.
The spotlight on Gov. Sarah Palin has spread to her first Supreme Court appointee - Dan Winfree - and her Department of Law-selected attorney for the Troopergate investigation.
Volokh Conspiracy tried to read tea leaves from Palin’s pick of Winfree, and the Wall Street Journal’s Law Blog lightly profiled Thomas Van Flein from the Anchorage office of Clapp […]
The 9th Circuit has reviewed Judge James Singleton’s rulings on ADA claims made by an FAA Flight Data Specialist at the Anchorage Air Route Traffic Control Center.
The panel reversed Singleton’s determination that the FAA retained sovereign immunity from an ADA retaliation claim, relying on last Term’s opinion in Gomez-Perez v. Potter, 128 S.Ct. 1931 (2008). […]
At tomorrow’s meeting of the Employment Law Section of the Alaska Bar Association, Gregory Fisher from the Anchorage office of Birch Horton will present his preview of the 2008-09 Term of the U S Supreme Court.
Fisher earlier analyzed the past Term’s labor and employment cases for AEL:
Sprint v. Mendelsohn
Federal Express v. Holowecki
Preston v. Ferrer, and […]
