Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only

PaulinMyrBch

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MYRTLE BEACH!!!!
Seems like good news. About as labor friendly as you can hope for from a political appointment standpoint. Having said that, I know nothing of their views from the bench. I'm guessing its a few hours before we get some twitter confirmation on past rulings involving labor matters.
 

dcmissle

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I've argued before Katzmann and Parker. Have no experience with Chin.

We could have done a lot worse, IMO, though my view may be colored too much by the results in the cases I had before them. More later ...

EDIT. Katz is the Chief Judge, so he'll almost certainly preside and run the argument. Again, I like that.
 
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joe dokes

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IIRC, one of Judge Chin's last acts on the District Court was sending Bernie Madoff away for a billion years.
 

WayBackVazquez

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Seems like good news. About as labor friendly as you can hope for from a political appointment standpoint. Having said that, I know nothing of their views from the bench. I'm guessing its a few hours before we get some twitter confirmation on past rulings involving labor matters.
What you're going to learn is that over 90% of the time each of the judges had heard one of these cases: (1) he has affirmed the District Court; (2) the arbitrator's award is confirmed; (3) the decision came in the form of a summary order. This case is going to be in the 10% in at least one of those three categories.

As far as particular decisions go, this is a "good" case - Katzmann (but a different Parker) on a panel affirming the district court's vacatur. This is a "bad" case - Katzmann on a panel reversing the love of my life Judge Cote's vacatur.

Parker also authored this opinion (cited in Brady's brief) affirming a district court's vacatur on evident partiality grounds.
 
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Steve Dillard

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Parker also authored this opinion (cited in Brady's brief) affirming a district court's vacatur on evident partiality grounds.
Argued by Kessler. Interesting decision, in which it addresses the underlying issue of partiality, which Kessler has not pushed too much because the CBA seems to consent to a level of partiality. A prior case between the lawyer and the judge can spur a better discusson, so I wonder whether Kessler can build this up a bit. Parker's decision essentially allows a standard below actual partiality, and that evidence of steps not to disclose/investigate bias can be used as evidence of such bias.

Unlike a judge, who can be disqualified "in any proceeding in which his impartiality might reasonably be questioned," Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 332-33 (1987) (emphasis added), an arbitrator is disqualified only when a reasonable person, considering all of the circumstances, "would have to conclude" that an arbitrator was partial to one side,Morelite, 748 F.2d at 84 (emphasis added).

An arbitrator who knows of a material relationship with a party and fails to disclose it meetsMorelite's "evident partiality" standard: A reasonable person would have to conclude that an arbitrator who failed to disclose under such circumstances was partial to one side.
However, as Commonwealth Coatings and Morelite make clear, subjective good faith is not the test. Once the arbitrator was aware that a nontrivial conflict of interest might exist, the calculus changed. A reasonable observer attempting to assess whether evident partiality existed would, we think, be given pause by a number of significant facts:
J
ustice White's statement that "arbitrators are not automatically disqualified by a business relationship with the parties before them if both parties are informed of the relationship in advance, or if they are unaware of the facts but the relationship is trivial," Commonwealth Coatings, 393 U.S. at 150, 89 S.Ct. 337 (White, J., concurring) (emphasis added), arbitrators must take steps to ensure that the parties are not misled into believing that no nontrivial conflict exists. It therefore follows that where an arbitrator has reason to believe that a nontrivial conflict of interest might exist, he must (1) investigate the conflict (which may reveal information that must be disclosed under Commonwealth Coatings) or (2) disclose his reasons for believing there might be a conflict and his intention not to investigate.
Brady doesn't fit neatly into this model, which is presumably why Kessler did not push this argument much, other than on the issue of Goodell's delegation of authority. Yet, knowing you have Parker, the author, on this Panel may allow him to push the point more, and ask the Court to affirm because even though Roger was not necessarily partial, his refusal to allow inquiry into the delegation (Via the privilege claim on the Wells investigation) might be seen as bias by an reasonable party. In effect, its not the bias, but the refusal to allow inquiry into a bias, that satsifies the standard.
 
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joe dokes

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Anything noteworthy about drawing the Chief Judge? Does that change anything?
As a general matter, probably not. He will be the presiding judge on the panel, so he'll sit in the middle and get to choose who gets to write the opinion (if he's in the majority). I don't know the particular practice of the 2d circuit, but its quite possible that the judges won't talk about the merits until after the argument when they take their initial vote and make the writing assignment (even though they have known they were on this panel for 8 weeks or so, and even though, individually, they are already pretty sure how they'll vote.)

(Apologies if this is old news to you and you were looking for some 2d circuit-centric info).
 

dcmissle

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Anything noteworthy about drawing the Chief Judge? Does that change anything?
Generally runs the show and sets the tone. Katz is businesslike and results oriented; leave the performance art at home.

In one of my cases, he presided. Another judge on the panel was giving me an impossible time and taking great pleasure in doing so.

Katz asked me a question directed to a specific point. I answered it and provided record cites. He then asked me to write a letter to the Court summarizing what I had said and including all the record cites bearing on the point. Got it to them that afternoon. Had a unanimous (unpublished) victory in hand a couple days later.

That was his way of saying, I don't care if this bothers you. This is the right result. If you are worried about down the line consequences, don't. We won't publish, and I don't want any dissents.
 

HowBoutDemSox

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Judge Chin apparently worked at an employee/union side labor and employment firm before being appointed to SDNY. No idea if his opinions have reflected any leanings in these types of cases, but I can't imagine Kessler being disappointed in pulling Chin here.
 

Marciano490

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I externed for Katzmann, spending a semester in his chambers my 3L year and writing a couple opinions. He's soft spoken and unassuming. Very academic and nerdy. A bit of a sports fan, but more in a historical sense than an actual fan of the games. I'm sure he knows who Brady is generally, but not much about his lifestyle and celebrity.

He's very circumspect and does not like to rush into anything. He's also one of those circuit judges who is mainly motivated by fear of being overturned by SCOTUS.

I will say that even as an extern and a 3L, I had enormous independence in his chambers to write opinions, even on at least one criminal matter. I don't remember him reading the appendices, briefs or cases, so much as just reading my bench memo, asking me some questions, and then telling me to write it up. Then again, I wasn't getting the most important or complicated cases, so that may be part of it, but I remember his clerks also saying he was very hands off.
 

Harry Hooper

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Had a unanimous (unpublished) victory in hand a couple days later.

That was his way of saying, I don't care if this bothers you. This is the right result. If you are worried about down the line consequences, don't. We won't publish, and I don't want any dissents.
As a member of the non-legal contingent, can you explain what unpublished/published and down the line consequences are about? I can't follow you here.

I will say that even as an extern and a 3L, I had enormous independence in his chambers to write opinions, even on at least one criminal matter. I don't remember him reading the appendices, briefs or cases, so much as just reading my bench memo, asking me some questions, and then telling me to write it up. Then again, I wasn't getting the most important or complicated cases, so that may be part of it, but I remember his clerks also saying he was very hands off.
So if the clerks are Jets fans...
 

Marciano490

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As a member of the non-legal contingent, can you explain what unpublished/published and down the line consequences are about? I can't follow you here.



So if the clerks are Jets fans...
Keep in mind, too, Katzmann is a feeder judge, meaning his clerks often end up on the Supreme Court, so these are going to be sharp cookies who have an eye on their future. Plus, I'll add that Katzmann is very careful and concerned about is legacy; he's not going to goof or be hands off on a case with national attention.
 

joe dokes

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Keep in mind, too, Katzmann is a feeder judge, meaning his clerks often end up on the Supreme Court, so these are going to be sharp cookies who have an eye on their future. Plus, I'll add that Katzmann is very careful and concerned about is legacy; he's not going to goof or be hands off on a case with national attention.
At the same time, though, while the case has national attention, it is not, from a legal perspective, a significant case.
As far as his legacy goes, it remains to be seen whether he even ends up as the writing judge.




As a member of the non-legal contingent, can you explain what unpublished/published and down the line consequences are about? I can't follow you here.
"Published" literally means published in the Official Reports , which you've probably seen as background in any number of TV shows. Those books have nothing but judicial opinions in them.


For a long time, only published cases had precedential value, that is, unpublished cases werent allowed to be cited by parties in future cases. That changed in 2009 when the Federal Rules were changed

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as unpublished, not for publication, nonprecedential, not precedent, or the like; and (ii) issued on or after January 1, 2007.



Over the years, the distinction between published and unpublished has blurredt, because almost all "unpublished" opinions can be found on Lexis or Westlaw. So the usual course was that the lawyer found an unpublished opinion that supports his case, and then went to the cases that case cites to get his support.

Back in the day -- like before Lexis and Westlaw were dominant forces -- if an opinion was unpublished, it almost literally could not be found, unless you somehow knew about it and went to the courthouse to get a copy.
 

Harry Hooper

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Back in the day -- like before Lexis and Westlaw were dominant forces -- if an opinion was unpublished, it almost literally could not be found, unless you somehow knew about it and went to the courthouse to get a copy.

Thanks for that reply. And what/who determined whether a decision was published?
 

Steve Dillard

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The Ninth Circuit's Judge Kozinski, one of the staunchest supporters of the no-citation rule, has recently articulated this justification:
http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1901&context=ggulrev

Faced with the prospect of parties citing these dispositions as precedent, conscientious judges would have to pay much closer attention to the way they worded their unpublished rulings. Language adequate to inform the parties how their case has been decided might well be inadequate if applied to future cases arising from different facts. And, although three judges might agree on the outcome of the case before them, they might not agree on the precise reasoning or the rule to be applied to future cases. Unpublished concurrences and dissents would become much more common, as individual judges would feel obligated to clarify their differences with the majority, even when those differences had no bearing on the case before them. In short, judges would have to start treating unpublished dispositions-those they write, those written by other judges on their panels, and those written by judges on other panels-as mini-opinions. [This] new responsibility would cut severely into the time judges need to fulfill their paramount duties; producing well-reasoned published opinions and keeping the law of the circuit consistent through the en banc process. The quality of published opinions would sink as judges were forced to devote less and less time to each opinion."'
 

OCST

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Thanks for that reply. And what/who determined whether a decision was published?
This is from Wikipedia, but is nonetheless accurate:

In each state of the United States, there are published reports of all cases decided by the courts having appellate jurisdiction going back to the date of their organization. There are also complete reports of the cases decided in the United States Supreme Court and the inferior federal courts having appellate jurisdiction since their creation under the United States Constitution. The early reporters were unofficial as they were published solely by private entrepreneurs, but in the middle of the 19th century, the U.S. Supreme Court and many state supreme courts began publishing their own official reporters.

In the 1880s, the West Publishing Company started its National Reporter System (NRS), which is a family of regional reporters, each of which collects select state court opinions from a specific group of states. The National Reporter System is now the dominant unofficial reporter system in the U.S., and some smaller states have discontinued their own official reporters and certified the appropriate West regional reporter as their official reporter. West and its rival, LexisNexis, both publish unofficial reporters of U.S. Supreme Court opinions. West also publishes the West American Digest System to help lawyers find cases in its reporters. West digests and reporters have always featured a "Key Numbering System" with a unique number for every conceivable legal topic.

The U.S. federal government does not publish an official reporter for the federal courts at the circuit and district levels (the sole exception is the D.C. Circuit). However, just as the UK government uses the ICLR reporters by default, the U.S. courts use the unofficial West federal reporters for cases after 1880, which are the Federal Reporter (for courts of appeals) and the Federal Supplement (for district courts). Both the Federal Reporterand the Federal Supplement are part of the NRS and include headnotes marked with West key numbers. For cases prior to 1880, U.S. courts use Federal Cases. West's NRS also includes several unofficial state-specific reporters for large states like California. The NRS now numbers well over 10,000 volumes; therefore, only the largest law libraries maintain a full hard copy set in their on-site collections.

Some government agencies use (and require attorneys and agents practicing before them to cite to) certain unofficial reporters that specialize in the types of cases likely to be material to matters before the agency. For example, for both patent and trademark practice, the United States Patent and Trademark Office requires citation to the United States Patents Quarterly (USPQ).[8][9]

Today, both Westlaw and LexisNexis also publish a variety of official and unofficial reporters covering the decisions of many federal and state administrative agencies which possess quasi-judicial powers. A recent trend in American states is for bar associations to join a consortium called Casemaker. Casemaker gives members of a state bar access to a computerized legal research system.
For practical purposes:

f(Z) = (a)(b)

Z=likelihood of publication

a=level of court (SCOTUS=100*; small local court approaches 0)

b=Novelty of legal issue presented

But since Lexis and Westlaw compile some unpublished decisions in their electronic databases, and they come up in searches too, the distinction is eroding.

Edit: there are still defenders of the nonuse-of-nonpublished decisions rule, as per above; I think they're losing the fight.

*A denial of cert or similar can be a one-word decision, i.e. "Denied." These are available for reference, but this isn't what people mean by "published.
 

dcmissle

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Thanks for that reply. And what/who determined whether a decision was published?
The ruling in my case was a 9-page Summary Order. The first sentence says, in bold:

"Rulings by summary order do not have precedential effect." That means that no party in another case may cite to it in an effort to bind the court, with few exceptions not applicable here.

The case was juicy, presenting several legal questions that had not been resolved by the Second Circuit. It was the sort of case that ordinarily would have produced a very lengthy opinion -- that the parties would have had to wait at least 9 months for.

Why didn't they publish? My guess is that Katzmann just did not want to deal with the other panel member on the issue that he gave me a hard time over. In addition, I think he might have been concerned about the quality of advocacy on the other side. We were able to get -- and sustain on appeal -- a Rule 11 monetary sanction against opposing counsel, which is unusual.

Courts increasingly are using summary dispositions, to keep up with their case loads and because many cases turn on the application of well settled rules, why write?

At least we received a fairly lengthy explanation of reasons. Some times you'll just get an Order that says, "The judgment is affirmed."
 

joe dokes

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Thanks for that reply. And what/who determined whether a decision was published?
Initially, it would be the judge (if in District Court), or the panel (if the court of appeals probably at the suggestion of the writing judge) But there are times when the West folks ask the judge to officially publish something that the judge had originally declined to do.
 

WayBackVazquez

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***

For a long time For some years, in a minority of jurisdictions, only published cases had precedential value could be cited for any purpose.-- that is, unpublished cases werent allowed to be cited by parties in future cases. That changed in 2009 when the Federal Rules were changed to uniformly permit citation of unpublished cases issued in 2007 or later in all federal appellate courts. The new rule does not affect the precedential value of such cases or dispositions.

***


Over the years, the distinction between published and unpublished has blurredt, because almost all "unpublished" opinions can be found on Lexis or Westlaw. So the usual course was that the lawyer found an unpublished opinion that supports his case, and then went to the cases that case cites to get his support.

Back in the day -- like before Lexis and Westlaw were dominant forces -- if an opinion was unpublished, it almost literally could not be found, unless you somehow knew about it and went to the courthouse to get a copy.
There is some inexact language in your explanation that I've tried to fix. Whether a case has precedential value has not been changed by Rule 32.1. The rule simply stops courts from preventing parties from citing these cases whatsoever. Every COA remains free to give whatever precedential value it chooses (i.e. none or non-binding in every case I'm aware of) to unpublished decisions. Also, it was never a universal rule that such cases couldn't be cited; as they became available, courts addressed how they could be used, and most permitted them to be cited as persuasive authority in some form. The courts that didn't we considered "important" courts, though -- the 2nd, 7th, 9th, and Fed Circuits.
 

joe dokes

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There is some inexact language in your explanation that I've tried to fix. Whether a case has precedential value has not been changed by Rule 32.1. The rule simply stops courts from preventing parties from citing these cases whatsoever. Every COA remains free to give whatever precedential value it chooses (i.e. none or non-binding in every case I'm aware of) to unpublished decisions. Also, it was never a universal rule that such cases couldn't be cited; as they became available, courts addressed how they could be used, and most permitted them to be cited as persuasive authority in some form. The courts that didn't we considered "important" courts, though -- the 2nd, 7th, 9th, and Fed Circuits.
Thanks for clearing that up. I was imprecise on the cite vs precedent distinction. When it first mattered to me (late 80s or so) I was unaware of any federal court that allowed even citation except in very limited circumstances, and not without the permission of the court.

FWIW -- The context of all this is that in the earliest days of "computer-assisted legal research" -- Lexis/Westlaw -- courts were concerned about unfair obstacles faced by small practitioners who couldn't necessarily bear the cost of the then-considerably more expensive process. That concern mostly evaporated through the 90s, as the electronic world became dominant. But in the '85-'90 time frame things were a bit complicated.
 

DennyDoyle'sBoil

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It is a rule in all Circuits I'm familiar with (and probably all of them) that one three-judge panel (except in very rare circumstances like change in a statute or Supreme Court law) cannot overrule a published decision from a prior three-judge panel. (I'm using "published" here as shorthand -- each court has a hierarchy of dispositions, with the highest being precedential decisions usually called "opinions." Those are what I'm talking about.) So, even on the Ninth Circuit, which has nearly 30 judges, so long as one panel has ruled something in a published opinion (which could have been 2-1), that's the law of the Circuit, and the only way you can get it turned over in a subsequent case is to ask the Court to go en banc, or get reversal by the Supreme Court. (That is where either the whole court or a much larger panel) sits to rehear the case.) En banc decisions are very rare -- especially in the Second Circuit.

One consequence of this rule is that the panel will usually think very hard about whether they really want their decision to have this weight. By and large, there is sometimes a concern that the Court is in a hard-facts-make-bad-law situation. That is, there is some sensitivity that the Court may be dealing with a unique set of facts or some strange wrinkle that may not be apparent that perhaps compels caution before having three (or even two) judges declaring the law for the entire Circuit for all future cases. It shouldn't be that way on legal questions -- the law should be the law regardless of the facts, but I think many (certainly not all) judges have the humility to be sensitive in certain cases that they may not have quite the foresight they think just from looking at one set of facts and one set of briefs.
 
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Steve Dillard

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Bringing this back to the Brady appeal, to me the most significant part of the Panel makeup is that there are no doctrinaire policy-making judges. I have become somewhat jaded about the appellate process. There are judges on the appellate court (I think of Judges Jacobs and Winter) to whom the case is a means to accomplish a broader policy goal. (For example, I have gotten Jacobs to follow the pro-business interpretation of a statute, mostly because it was pro-Bank, whereas I lost the same issue in the Fourth Circuit because it was pro-local small clients-- distinguishing my prior Second Circuit cases and Ninth Circuit cases on claims that issues had not been argued in those cases, even though we had demonstrated from the briefs in those other cases that they had been. Judges can either repeat false facts, or ignore arguments on appeal ("other arguments considered and dismissed" as they choose. Their rationale can change -- my Second Circuit opinion was re-issued and changed three times after the Panel issued it in order to change its reasoning to conform to other cases that it was hearing. If that goal is larger than doing something fair in a particular case Brady would have been in trouble. Clement tried to couch this as part of a broader labor/employee non-review of arbitrators. My sense from Chin, Katzmann and Parker is that they will be less tied to doctrinal principles of absolute arbitration discretion and more concerned about fairness. This case is squishy enough on the facts that they can fit it into one of Brady's arguments and mold an opinion to be of little precedent in the future. Even the Parker/Kessler decision referenced above created a bit of a new rule about arbitrator bias, and while they could have sent it back with a chance the judge would have found no real bias, Parker seemed concerned enough about a potential bias that they decided to resolve that issue themselves. I think Goodell's "bias" may influence him, even though Kessler did not really argue it in his brief (his bias argument was limited to the delegation aspect of the case).
 
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dcmissle

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Good post. I was concerned about Winter being assigned to this one.
 

dcmissle

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I've looked at the argument calendar for the week. Couple of thoughts:

Argument is set for 2 o'clock Thursday afternoon. Despite the time allotments (15 minutes) the lawyers can argue as long as the panel wants them up there. There are no other cases for this session, no constraints.

I believe this is the only case this week with this particular panel. Katz is presiding over other panels.

Edit:

I spoke to quickly. Parker is Senior; my mistake.
 

dcmissle

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Generally depends how the panel decides to rule -- by published decision or unpublished order. The former usually takes months; the latter can issue within days.

The temptations to take the latter route in this case are many.
 

TheoShmeo

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From today's Herald:

http://www.bostonherald.com/opinion/op_ed/2016/03/mahoney_tom_brady_s_legal_team_needs_hail_mary

The gist:

Labor law is unique. Consider the following. Here is the federal labor law standard that governs a court’s review of a labor arbitrator’s opinion: Even if the court finds that the arbitrator made a mistake of fact (e.g., heard the witness wrong) and even if the judge concludes that the arbitrator made a mistake of law (e.g., misapplied rules of contract interpretation), the reviewing court still must uphold the arbitrator’s decision so long as that decision “draws its essence from the collective bargaining agreement.” Read that part of the previous sentence again, and keep that in the front of your mind. It reflects an overarching principle in the federal law governing labor arbitration — arbitrators, not courts, should decide the case.

The sole job for the court (Judge Berman in the first instance in the Deflategate case) is to determine if Roger Goodell exceeded the authority granted to him by the agreement. Goodell did not. The only individual who exceeded his authority in this case was Berman, and the Second Circuit will soon correct his error.
Mahoney goes on to detail how he believes Berman fumbled.

My take is that Goodell's decision did NOT draw its essence from the CBA for the reasons that have been discussed repeatedly in this thread. But my fear, and my fear all along, is that the great deference that many courts give arbitration awards will lead the Second Circuit to determine that Goodell's decision was within bounds.

Views on this piece would be appreciated.

PS:

Regarding the author:

http://michaelmahoneylaw.com/
 
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Average Reds

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I don't usually post in this thread because I don't have a JD, but that article strikes me as incredibly self-serving. He's taking an "edgy" position that allows him to get out front on the off-chance that the 2nd Circuit rules against the NFLPA/Brady.

This strategy has many benefits for Mahoney. If he's right, he draws a lot of positive attention his way, which will help his practice. But the best part is that he's insulated from being wrong, since he's already declared that Berman misapplied the legal standard. He can stand by his assertion and simply say that the 2nd Circuit gave too much deference to Berman, but that he's happy at the ruling in any case even if it stands in opposition to the clear intent of the relevant statute. So by taking his position, he gets tons of ink regardless of whether anything he says is correct or not. (And for the record, I think not.)

It's a smart marketing play by Mahoney. Period.
 

lexrageorge

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Mahoney makes it sound like a well respected federal judge completely and utterly dropped the ball and made egregious mistakes in his ruling. IANAL, so I guess that's possible. Team Brady could lose, but I'm skeptical it's as slam dunk of a case as Mahoney makes it out to be.
 

WayBackVazquez

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Cmon Theo, let's not muck up this thread with a discussion about what a local personal injury lawyer thinks about this case. We will have a transcript of the actual argument within hours, and we can talk about what the judges appear to actually be interested in. We have the briefs. We've already talked in this thread about the FAA standards vs. the LMRA and whether it makes a difference. We've gone over deference to the arbitrator ad nauseum. If you want to talk about Michael Mahoney's thought, do it in a media thread, or the main Deflategate thread.

Edited to take out some unnecessary language about Mr. Mahoney. I'm sure he's a fine man and good at what he does, but he's personal injury lawyer. He doesn't practice labor law, he doesn't practice appellate law, and he doesn't even practice in federal courts. We are fortunate to have a number of people who do some or even all of those things, and who have probably spent much more time thinking and reading about this case than Mr. Mahoney has.
 
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TheoShmeo

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Agree that he's not an expert but a few lines about why you think he's wrong would be more illuminating, in my view, than that post.
 

AB in DC

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Why assume that a personal injury lawyer knows what he's talking about in the first place? There have been plenty of other folks cited in this thread who are, you know, actually familiar with the case law here.
 

WayBackVazquez

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Agree that he's not an expert but a few lines about why you think he's wrong would be more illuminating, in my view, than that post.
Why? Why should we rehash things that were already discussed four months ago because some guy in a tabloid paper says something about them?

It's not really a big deal or difference. They're referring to the LMRA because it's directly applicable, but the standards aren't significantly different than those of the FAA. Which is to say, their argument is not primarily that the district court messed up because it applied the FAA standards and not the LMRA standards. In fact, they put that argument in a footnote, and argue that Berman was wrong under either.
 

dcmissle

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Instead of these worry beads, to pass the time, check out J Richard Berman, PLI program recorded in NYC last Nov 5, Trial By Jury 2015. Chaired third panel on direct examination. Charming man. Ted Wells did not show that day despite being scheduled. Something came up.
 

TheoShmeo

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I'm not aware of everything that was discussed here four months ago. And I think we can manage to co-process. But thanks for that quote. Anything additional that succinctly deals with the points made in the Herald would be interesting to me...even after discarding my worry beads.
 

Steve Dillard

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Very briefly, why Brady faces an uphill fight. Brady's first and main argument is notice, contending that Commissioner was restricted in punishment by the penalties agreed upon by the union and league.

Appellees insist that because the conduct at issue involved game balls, the Commissioner was constrained to impose only a fine under
the player policy for “Uniform/Equipment Violations.” And they repeatedly fault the Commissioner for “not even acknowledg[ing]” the Uniform Policy in his final
decision. Appellees’ Br. 38.
Clement noted, however, that Kessler initially took the position that the Equipment violation rule did not cover the conduct alleged.

But Appellees fail to mention a fatal flaw in their argument: The Commissioner did not address the Uniform Policy in his decision because both
parties took the position that the policy was inapplicable. Indeed, in proceedings
before the Commissioner, Appellees affirmatively stated that the policy does not
cover Brady’s conduct because balls are not part of the uniform or equipment worn
by players. Specifically, in his opening statement, Appellees’ counsel said that they
“don’t believe [the uniform] policy applies ... because there is nothing here about
the balls.”
JA955-56. No one disagreed—for the understandable reason that, as
explained below, the policy plainly does not apply to game balls.
This mirrors the broader discussion on this board about whether the Commish could find that tampering with a ball goes to the integrity of the game, and therefore constituted a further offense.
We've discussed the difficulties Kessler will face explaining why he now believes the Equipment violation provision is the exclusive punishment (pre-empting other punishements) after having initially told Goodell the Equipment violation rule didn't even apply to psi violations.

I think Clement knocked Kessler off his spot on that first argument, so Kessler will have to prevail on two other issues. The first is somewhat related, namely the fact that Brady was not given notice before the hearing of what he was charged with. Moving from the generally aware to the participated in theory was prejudicial. I don't know, however, whether this would get Brady much relief, or whether this would lead to a remand.

Second, the discovery issue, and how Brady was precluded from discovery into Wells/Pash's communications. I would tie this to the bias point, as held in the earlier Kessler/Parker decision, as the arbitrator precluding inquiry into communications between his office and the fact finder suggests bias (at least within the 2d Cir's test). I suspect this is where Kessler will make most of his headway with the Panel. It will be interesting to see how he quickly moves off the first argument.... perhaps the Panel will take him there.
 
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edmunddantes

Member
SoSH Member
Jul 28, 2015
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Very briefly, why Brady faces an uphill fight. Brady's first and main argument is notice, contending that Commissioner was restricted in punishment by the penalties agreed upon by the union and league.



Clement noted, however, that Kessler initially took the position that the Equipment violation rule did not cover the conduct alleged.



This mirrors the broader discussion on this board about whether the Commish could find that tampering with a ball goes to the integrity of the game, and therefore constituted a further offense.
We've discussed the difficulties Kessler will face explaining why he now believes the Equipment violation provision is the exclusive punishment (pre-empting other punishements) after having initially told Goodell the Equipment violation rule didn't even apply to psi violations.

I think Clement knocked Kessler off his spot on that first argument, so Kessler will have to prevail on two other issues. The first is somewhat related, namely the fact that Brady was not given notice before the hearing of what he was charged with. Moving from the generally aware to the participated in theory was prejudicial. I don't know, however, whether this would get Brady much relief, or whether this would lead to a remand.

Second, the discovery issue, and how Brady was precluded from discovery into Wells/Pash's communications. I would tie this to the bias point, as held in the earlier Kessler/Parker decision, as the arbitrator precluding inquiry into communications between his office and the fact finder suggests bias (at least within the 2d Cir's test). I suspect this is where Kessler will make most of his headway with the Panel. It will be interesting to see how he quickly moves off the first argument.... perhaps the Panel will take him there.
Not a lawyer, but I found this fairly compelling as to how Clement really didn't knock Kessler off his point.

At first you might think Kessler is being inconsistent here – that he’s arguing A) that the policy doesn’t apply, and B) if it does apply only a fine is appropriate. And you’d be correct that these are two mutually exclusive positions. However, it’s important to note that this sort of argumentation is standard legal practice, often called pleading in the alternative.[5] In the legal realm, there’s nothing wrong with putting forth two alternative defenses on one’s behalf, even if they might be inconsistent with one another.
and

So in August, its first chance to really argue before Judge Berman, the NFL conceded that 1) the NFLPA argued before Goodell that the equipment policy applied, and 2) the NFLPA argued before Judge Berman that the equipment policy applied. The argument remained the same at oral arguments before Berman. Here’s the transcript of an exchange between Berman and Kessler from the August 19, 2015 hearing:
So why exactly is the NFL making this argument? It seems clear that from the beginning the NFLPA has argued that if any policies apply to what Brady did, the uniform or equipment violations part of the Player Policies was most relevant and applicable. Once Judge Berman determined that the specific equipment violation policy applied, the union’s argument on appeal was pretty much the same as it was to Goodell and Berman – the application of such a policy requires fines for first offenses. This was hardly a new argument, much less a “whiplash-inducing change of position.”

The real question is why the NFL waited so long to bring up this argument. If the league really believed the NFLPA admitted that the player equipment violation policy did not apply, why didn’t Goodell address that in his decision in response to the NFLPA’s post-hearing brief? Why didn’t Daniel Nash argue that before Berman? Why didn’t the NFL make that case in its opening brief? Bringing up an argument that mischaracterizes the other party’s position in the last brief before oral arguments seems a dubious strategy. Was the NFL trying to prevent the NFLPA from having a chance to respond to the argument in writing by holding it until the last brief? Perhaps the league did not think of the argument until now and thought it would throw it in the brief and see if it stuck – the NFL did bring in new legal counsel specifically for the appeal after all. Maybe the league had overlooked that it had already conceded that the NFLPA argued this before both Goodell and Berman.

Whatever the reason, the argument is unlikely to have much actual impact on the appeal. This issue will come down to whether the Second Circuit believes Judge Berman inappropriately second-guessed Goodell’s authority to decide which policy to use when punishing Brady or if it believes Goodell improperly disregarded the essence of the collective bargaining agreement by choosing to punish under his Article 46 powers rather than the more specific equipment violation policy.

It’s clear that the NFLPA argued from the beginning that the equipment violation in the Player Policies was most relevant for Brady’s offense. Kessler argued essentially the same point to Goodell and Berman. Berman determined that the policy applied, and Kessler defended that ruling to the Second Circuit using a similar justification as he used earlier in the case. The NFL had ample opportunity to make this an issue earlier in the case and likely did not because there simply is not much to fight about here. Though the league may have audibled to a late blitz, it seems the other team already picked up the rush.
The link goes into a further discussion of the points around this argument and why it really isn't that hard of a slam by Clement.
 

Steve Dillard

wishes drew noticed him instead of sweet & sour
SoSH Member
Oct 7, 2003
5,614
The link goes into a further discussion of the points around this argument and why it really isn't that hard of a slam by Clement.
I disagree. The problem is that Kessler has to show the equipment rule applies, in order to avoid the broader "conduct detrimental" provision. As Berman wrote, the equipment provision would apply only because it is more specific notice. Absent such specifically applicable provision, the general con det provision would apply.

Goodell’s reliance on notice of broad CBA “conduct detrimental” policy – as opposed to specific Player Policies regarding equipment violations – to impose discipline upon Brady is legally misplaced…because an applicable specific provision within the Player Policies is better calculated to provide notice to a player than a general concept such as “conduct detrimental.”
Thus, Kessler arguing that the specific notice provision doesn't fit does not leave a vacuum. It leaves the provision under which Brady was punished b