8 months ago

Weekly litigation update — February 25, 2017

By James S. Burling Vice President for Litigation

Commonsense  result in New York

In Oddo v. Queens Village Committee for Mental Health for Jamaica Community Adolescent ProgramNew York’s highest appellate court ruled here that a half-way house for drug addicts is not liable when a former resident, who was forcibly removed by the police at the house’s request, assaulted someone at his grandmother’s home. Because the half-way house had no control over its expelled resident, it was not responsible for injuries he caused. This is entirely consistent with PLF’s amicus brief, which argued that “the potential for unlimited liability looms large if an organization owes a duty to the general public for crimes committed by former residents.” For more, see our blog post here.

PLF weighs in against Obama labor regulation

PLF filed this amicus brief asking the Supreme Court to take up National Restaurant Association v. Department of Labor, arguing that the Department is not free to come up on  a rule regarding the treatment of tip income unless a statute actually gives it authority to do so. Here the Ninth Circuit ruled that because a statute did not affirmatively forbid the agency from regulating tip income, nothing could stop the Department from doing so. But that has it backwards — the executive branch can act only when it is authorized by Congress to act, not when the executive would like to fill in for legislation it would have liked but Congress never adopted. Put simply, the Department of Labor cannot legislate when Congress doesn’t, only Congress can pass new laws. For more on the separation of powers issue, see our blog post here.

Notice of Appeal filed in free speech case

We filed our notice of appeal in Associated Builders and Contractors–California Cooperation Committee v. Becerra. In California, contractors on state construction projects must pay “prevailing wage.” Under the prior state law, contractors can satisfy that requirement, in part, by contributing to an organization that will lobby for the advancement of the industry. But a new law now effectively limits those contributions to unions — leaving out non-union advocates — effectively discriminating against non-union speech. After a trial court upheld this, we were asked to take this case up on appeal. For more detail, see our blog post here.

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