Northwest Business Litigation

Update your policies now to comply with ADAAA

The February 2009 issue of Washington Healthcare News includes an article by blog contributor Kathy Feldman, who practices employment law in Ater Wynne's Seattle office.  The article addresses the ADA Amendments Act of 2008, which significantly expands the original ADA to include more individuals with less severe impairments.  The new law took effect January 1, 2009.

President Obama signs workplace-related legislation into law

On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act, expanding the time frame in which workers can sue for discrimination they have experienced based on gender, race, national origin or religion.  The legislation is named for the woman who filed a Title VII wage discrimination lawsuit in 1998 against her employer, Goodyear Tire & Rubber.  Ms. Ledbetter, a manager at Goodyear, discovered she was being paid less than her male coworkers.  She filed suit and won a jury verdict in 2003.  But the lawsuit was found invalid by the U.S. Supreme Court because it was not filed within six months of when the discrimination began -- even though Ms. Ledbetter was unaware of the discrimination until years later.  The Act relaxes the statute of limitations, making it clear that each new paycheck is a violation of the law if it results "in whole or in part" from a discriminatory pay decision made in the past.

See our earlier report on the Ledbetter case here.

Ninth Circuit limits tribal court commercial jurisdiction

In its first tribal civil jurisdiction case since last year's U.S. Supreme Court ruling in Plains Commerce Bank (see our blog entry about the case), a panel of the Ninth Circuit Court of Appeals in Philip Morris v. King Mountain Tobacco rejected tribal court jurisdiction over a lawsuit brought by a Yakama tribal member business against tobacco giant Philip Morris seeking declaratory relief in a trademark infringement dispute. 

The panel concluded, for the first time in the Ninth Circuit, that "a tribal court has jurisdiction over a nonmember only where the claim has a nexus to the consensual relationship between the nonmember and the disputed commercial contacts with the tribe."  Applying this rule, the panel majority found that even though Philip Morris had marketing contracts with various stores on the reservation, the suit was about trademark infringement on nationwide sales which had nothing to do with the contracts.  The Court narrowly construed the other two grounds by which a tribal court may acquire jurisdiction over a nonmember, by limiting such cases to those that "pose a direct threat to tribal sovereignty" and rejecting the argument that the Lanham Trademark Act granted tribal court jurisdiction to cancel federally-granted trademarks.  Judge Fletcher, writing separately, concurred in the judgment but issued a separate opinion to chastise the majority for "engag[ing] in extended dicta in an attempt to undermine" certain long-standing tribal jurisdiction cases.

This opinion, issued earlier this week, marks a further limitation on the reach of tribal court jurisdiction over commercial cases brought against nonmember defendants.  If a tribe seeks to secure tribal court jurisdiction over a nonmember as part of a contractual relationship, it is critical both to establish clear contractual obligations that bind the nonmember to tribal court jurisdiction, and to limit any litigation to the scope of the contract.  Otherwise, state or federal forums will decide the dispute.

BOLI to hold off on issuing new OFLA regulations

The new federal Family Medical Leave Act (FMLA) regulations went into effect on Friday, January 16, 2009. FMLA is applicable to employers with 50 or more employees. Oregon employers with 25 or more employees are covered by the state Oregon Family Leave Act (OFLA) and regulations. Those Oregon employers with 50 or more employees must comply with both laws. Employers in Washington with 50 or more employees must also comply with FMLA and their own states’ leave laws.

The Oregon Bureau of Labor and Industries (BOLI), which enforces OFLA, announced today that, while there are inconsistencies between FMLA and OFLA, it will not be making changes to OFLA regulations at this time. BOLI will hold public hearings in February 2009 to gather public comment, after which it will determine whether to make changes to OFLA regulations. Until such time as BOLI modifies the OFLA regulations, employers covered by OFLA must apply the law that is most generous to the employee. Notwithstanding the differences between state and federal law, BOLI says that it is permissible for Oregon employers to use the federal forms for obtaining medical certification of the employee’s serious health condition (WH-380-E November 2008) and for a family member’s serious health condition (WH-380-F November 2008). The federal forms are available following the regulations on DOL’s website. If you need an updated family medical leave policy and forms, we have them available. Please contact Stacey Mark or one of our other employment attorneys at 503-226-1191.

Ninth Circuit interprets Oregon's anti-SLAPP statute, dismisses appeal

Oregon is one of a number of states that have enacted "anti-SLAPP" statutes designed to prevent certain types of abusive lawsuits.  SLAPP stands for "strategic lawsuit against public participation," and the anti-SLAPP statute creates a procedure for dismissing at an early stage a lawsuit designed to quash speech or activism on issues of public interest.  The procedure, called a "special motion to strike," puts the litigation on hold until a judge decides that there is a probablility plaintiff will prevail at trial.  ORS 31.150.

The Ninth Circuit last week addressed whether the a defendant can pursue an immediate appeal when the trial court denies a special motion to strike and determines that the lawsuit attacking defendant's speech must proceed to trial.  In Englert v. MacDonell, "the complaint alleged that the six named defendants, all forensic scientists in blood pattern analysis, had falsely denigrated plaintiff's qualifications in that specialty."  Defendants used Oregon's anti-SLAPP statute to ask the district court to dismiss the claims at an early stage.  The court denied the special motion to strike as to four of the six defendants, and those parties filed an immediate appeal to the Ninth Circuit.  The Ninth Circuit found in the anti-SLAPP statute no legislative intent to allow appeal of a denial of a special motion to strike before entry of judgment.  As a result, the court dismissed the appeal for lack of jurisidiction.