Today, the Supreme Court granted certiorari in two cases of interest to the business community:

  • Title VII—Affirmative Defenses—EEOC Conciliation Requirement
  • Federal Appellate Jurisdiction—Finality Of Order Dismissing One Among Many Consolidated Cases

Title VII—Affirmative Defenses—EEOC Conciliation Requirement

Title VII of the Civil Rights Act of 1964 requires the Equal Employment Opportunity Commission to try to negotiate an end to an employer's unlawful employment practices before suing the employer. See 42 U.S.C. § 2000e-5(b), (f). Today, the Supreme Court granted certiorari in Mach Mining v. Equal Employment Opportunity Commission, No. 13-1019, to decide whether and to what extent an employer may raise the EEOC's failure to engage in the statutory conciliation process as an affirmative defense to a lawsuit brought by the EEOC under Title VII.

Prior to the decision below, every circuit to have considered the issue had held that an employer may raise the EEOC's failure to conciliate as an affirmative defense, but these courts had adopted varying standards for evaluating the EEOC's conciliation efforts. For example, the Second, Fifth, and Eleventh Circuits had directed lower courts to apply a searching three-part inquiry, while the Fourth, Sixth, and Tenth Circuits had adopted a more deferential "good faith" standard. In its decision in this case (738 F.3d 171), the Seventh Circuit expressly parted ways with these circuits, becoming "the first circuit to reject explicitly the implied affirmative defense of failure to conciliate." Id. at 181.

In this case, the EEOC sued Petitioner Mach Mining, LLC, for sex discrimination in hiring. Mach Mining raised as an affirmative defense that the EEOC had failed to fulfill in good faith its statutory obligation to conciliate before filing the lawsuit. The EEOC subsequently moved for partial summary judgment on the failure-to-conciliate defense, arguing that the conciliation process is not subject to judicial review. The district court denied the motion, but the Seventh Circuit reversed. In holding that a failure-to-conciliate defense is unavailable to employers as a matter of law, the Seventh Circuit found it significant that the text of Title VII contains no express provision for an affirmative defense based on a defect in the EEOC's conciliation efforts. The court further reasoned that an implied affirmative defense for failure to conciliate—and the corresponding need to submit evidence to the court to prove that defense—"conflicts directly" with Title VII's requirement that all conciliation efforts be kept confidential. 738 F.3d at 175. The court was also troubled by the lack of a clear legal standard under which to review the EEOC's conciliation efforts, and expressed confidence that the agency has "powerful incentives to conciliate" even in the absence of judicial review. Id. at 180.

The Supreme Court's decision should be of great interest to all employers because it likely will determine (i) whether the target of an EEOC discrimination suit may raise the EEOC's failure to conciliate as an affirmative defense to liability; and if so, (ii) the standard under which courts will evaluate the defense. These questions will be of substantial practical importance whenever the EEOC sues an employer for alleged violations of Title VII.

Absent extensions, which are likely, amicus briefs in support of the petitioner will be due on August 21, 2014, and amicus briefs in support of the respondent will be due on September 22, 2014.

Federal Appellate Jurisdiction—Finality Of Order Dismissing One Among Many Consolidated Cases

Under 28 U.S.C. § 1291, the federal courts of appeals have jurisdiction over "final decisions of the district courts." The Supreme Court granted certiorari today in Gelboim v. Bank of America Corp., No. 13-1174, to determine whether and in what circumstances the dismissal of an action that has been consolidated with other suits is a final decision that is immediately appealable.

The case arises from litigation alleging that several financial institutions manipulated the London Interbank Offered Rate ("LIBOR"), which provides a benchmark for short-term interest rates in the United States and around the world. The alleged manipulation prompted a variety of lawsuits claiming injury from a suppression of the U.S.-dollar LIBOR. One of those cases was Gelboim, a putative class action by purchasers of bonds with LIBOR-linked interest rates, in which the plaintiffs alleged that the defendants violated federal antitrust law.

The Judicial Panel on Multidistrict Litigation transferred the LIBOR-related litigation to the United States District Court for the Southern District of New York for pretrial proceedings. The district court permitted three putative class actions—including Gelboim—and one non-class action to proceed, and ordered that the cases be consolidated for pretrial purposes.

The district court subsequently dismissed Gelboim on the ground that the plaintiffs had not adequately pleaded antitrust injury. The court left other federal and state claims pending in the other consolidated cases.

Because their action had been dismissed in its entirety, the Gelboim plaintiffs appealed. The Second Circuit dismissed the appeal, however, because the district court had not dismissed all the consolidated complaints. In doing so, the court relied on its previous decision in Houbigant, Inc. v. IMG Fragrance Brands, LLC, 627 F.3d 497 (2d Cir. 2010) (per curiam), in which the court held that "when there is a judgment in a consolidated case that does not dispose of all claims which have been consolidated, there is a strong presumption that the judgment is not appealable absent a Rule 54(b) certification." Id. at 498. The petition for certiorari characterizes that approach as a "near-per se bar to appeal."

The circuits are divided on the issue of immediate appealability in consolidated cases. The Ninth, Tenth, and Federal Circuits apply a categorical rule that the dismissal of one case is not immediately appealable, while the First and Sixth Circuits apply the opposite categorical rule—that the dismissal of one of several consolidated cases is immediately appealable. The Third, Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits apply a case-by-case approach that permits an immediate appeal whenever the underlying complaint was not consolidated for all purposes.

This case is of significant interest to businesses that are or may be involved in consolidated federal actions because the Supreme Court's decision will determine whether appeals in those actions must await the final resolution of all the consolidated cases.

Barring extensions, which are likely, amicus briefs in support of the petitioner are due on August 21, 2014, and amicus briefs in support of the respondents are due on September 22, 2014.

Today, the Supreme Court has also invited the Solicitor General to file briefs expressing the views of the United States in one case of interest to the business community:

Teva Pharmaceuticals USA, Inc. v. Superior Court of California, Orange County, No. 13-956: The question presented is whether the California Court of Appeal erred when it held—contrary to the Supreme Court's decisions in Buckman Co. v. Plaintiffs' Legal Committee and PLIVA, Inc. v. Mensing; the decisions of the Fifth and Eleventh Circuits in Morris v. PLIVA, Inc. and Guarino v. Wyeth, LLC; and the plain language of the federal Food, Drug, and Cosmetic Act—that federal law does not preempt state tort

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