Niche Firm Rebuffed by Ninth Circuit for Attempt to Circumvent Trial Court

In rejecting the attempts of two defendants in three cases to get entries of summary judgment after having been denied by federal district courts, the Ninth Circuit has tasked the defendants’ law firm, Littler Mendelson PC, with convincing the appellate panel that the procedural gambits that it deemed to be “frivolous and wholly without merit” don’t warrant monetary sanctions against the firm and six of its lawyers. See In re: Con-way Freight, Inc., No. 13-71160 (9th Cir. June 27, 2013); see also In re: Nordstrom, Inc., No. 13-71162 (9th Cir. June 27, 2013) (“Nordstrom I”); In re: Nordstrom, Inc., No. 13-71163 (9th Cir. June 27, 2013) (“Nordstrom II”).

In the two putative class actions against Nordstrom, the plaintiffs alleged that the department store violated wage-and-hour law by imputing commission payments into periods of time in which commissioned employees were incapable of making sales or earning sales commissions. See Nordstrom I at 1; Nordstrom II at 1. Similarly, in the class action filed against transportation company Con-Way on behalf of “piece rate” workers, plaintiffs alleged that the defendant paid employees at a rate below the minimum wage. See Con-Way at 1.  The three cases share roughly the same procedural circumstances, which apparently caused the Littler firm to pitch an innovative strategy to the affected clients.

In substantially identical writs of mandamus on behalf of its clients, Littler asked the Ninth Circuit to intervene and reverse the district courts’ denial of summary judgment, which under the mandamus standard requires that a party have exhausted all relief in the district court and have no other means to avoid irreparable harm. While substantive issues of California law are frequently decided in federal court without extensive state-court authority interpreting California’s wage-and-hour statutes, mandamus should only be sought where new and important issue of law of first impression are implicated.

The Ninth Circuit’s curt and candidly negative response to Littler strongly suggested that the firm had overreached. (In each instance, Littler – not its clients – was ordered to show cause why sanctions shouldn’t be imposed against it pursuant to Ninth Circuit Rule 46-2 (d), which governs attorney misconduct and discipline.) Indeed, while the firm has filed a 50-page brief accompanied by exhibit appendices of nearly 1,000 pages purporting to respond to the Ninth Circuit, rather than establishing the extraordinary circumstances that would justify mandamus, Littler appears to have demonstrated little more than the usual uncertainty and dispute around any issue of statutory interpretation, and has fallen even shorter of establishing the requisite irreparable harm. See, e.g., Response to Order to Show Cause, Nordstrom II (July 19, 2013).

Seemingly adopting a more contrite position as to the greater public, and perhaps recognizing that the mandamus approach may be regarded as more foolish than innovative, the Littler firm has issued the following statement: “We have great respect for the United States Court of Appeals for the Ninth Circuit and are preparing a response to its order. We look forward to having this matter resolved conclusively in the near future.”