(Updated) Free copy of Zen Entrepreneurship for Recent and UPCOMING College Grads!

I recently attended a college graduation ceremony here in Silicon Valley (like most things in my life, I wasn’t actually planning to attend this particular ceremeony, I just went to campus for a walk at sunset and found myself in the middle of a graduation ceremony!).

It made me think about the number of young people who have told me that my book, Zen Entrepreneurship: Walking the Path of the Career Warrior has had an impact on them and how they view the world.  I think this new generation is much more attuned to ideas of integrity, holistic values, and finding and doing meaningful work in the world than we were at that age. I also think they integrate what we think of as traditional Eastern and Western philosophies into their lives naturally, without having to rebel (as the baby boomers did) or look at it just as a matter of getting ahead in life (as subsequent generations did), and aren’t caught up in the wave of terrorism and war and religious strife that was present in the last decade.

 While the book is great for people of all ages who are looking at making a change in their careers or bring more spirituality in their work, I think the story particularly calls to young folks who are just starting out and looking to find their path in life.  Moreover, the story in the book took place when I was 23 and had just graduated from college and was trying to start my very first business, so I think people in that age can relate much more easily.

So, if you just graduated recently (I’ll leave the definition of recently up to you, but the last few years is OK), or you’re about to graduate in the next year (or like Bill Gates or Mark Zuckerberg, you dropped out and have no plans to graduate!), or you’re generally of that age and are interested in “thinking different”, I’d like to offer you a free copy of Zen Entrepreneurship: Walking the Path of the Career Warrior.  I remember how tight money was in those days (of if you'd like to send the book as a gift to someone of that age and money is tight!).

Just email me at zenentrepreneur@gmail.comand include the following information:

• Name of person receiving the book
• College name/graduation date/Field of study (or other circumstances if you or the recipient didn't or are not attending college)
• A few sentences on how you heard about the book and why you think you’d like to read it
• Address for the book to be shipped to. [For international, be sure to indicate address1, address2, city, state, postal code, and phone number which amazon requires for international shiopments].

And that’s it!   I’ll send you a confirmation email once I have the book sent out to you!

[UPDATE: I'd like to expand this free offer to all college students who are interested in getting a free copy of the book, not just recent grads! Just send along the information above].  

U.S. Supreme Court: Retaliation Causation

University of Tex. Southwestern Med. Ctr. v. Nassar (opinion here) is the Supreme Court opinion setting forth the "causation" standards that apply to retaliation cases under Title VII of the Civil Rights Act of 1964.

Nassar was a doctor and professor at Univ. of Texas. He also worked at the University's medical center.  He  complained of harassment and discrimination by Dr. Levine. He tried to work only at the hospital to avoid Dr. Levine's harassment at the University. But the University blocked his effort, claiming that University policy required attending doctors also to be professors at the medical school.

So, Nassar sued for retaliation, claiming discrimination / constructive discharge, and retaliation in that the University blocked his hiring at the hospital.  After Nassar won a verdict, the Supreme Court accepted review to determine whether the retaliation claim was decided under the correct "causation" framework.

The Court decided that in Title VII cases, the causation standard is "but for," which means that the employer would not have taken negative action against the employee "but for" the employee's engaging in protected activity. Put another way, the harm would not have occurred if the employee had not complained.

Along the way, the Supreme Court majority explained the causation standard that applies to Title VII discrimination cases.  This is known as the "motivating factor" standard:

An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision. This principle is the result of an earlier case from this Court, Price Water­house v. Hopkins, 490 U. S. 228 (1989), and an ensuing statutory amendment by Congress that codified in part and abrogated in part the holding in Price Waterhouse, see §§2000e–2(m), 2000e–5(g)(2)(B). 

Why the separate standards, you ask?  Because in Title VII, the discrimination provisions are covered by a specific statute, and that statute was amended to include the motivating reason standard.    The anti-retaliation section is in another part of Title VII.  So, what the Court really decided was that the 1991 amendment to Title VII's causation provision did not apply to the retaliation piece. 

It remains to be seen whether this decision will influence California courts' interpretation of the causation standard. Earlier this year, the California Supreme Court examined causation standards in "mixed motive" cases (discussed here). We will see what the lower courts do with Nassar in the coming months. 

DGV

 

US Supreme Court: Who Is a Supervisor for Determining Title VII Liability Standards?

Under Title VII of the Civil Rights Act of 1964, the law regards harassment by a supervisor as different from harassment by a co-worker.  The employer is liable for harassment by a co-worker if the employer is negligent: the employer knew or should have known of the harassment and failed to take appropriate corrective action.  That is true as well in California under the Fair Employment and Housing Act.

For supervisor harassment, though, the employer is "strictly liable" - regardless of what it knew or should have known, and regardless of what action it takes - if the harassment includes a "tangible employment action" such as firing, demotion, loss of pay.  But if there is no tangible employment action, the employer may escape liability by proving that the employer exercised reasonable care to prevent harassment and the harassment victim did not take advantage of the employer's preventive or corrective opportunities.  That is known as the "Faragher-Ellerth" defense.  

Under California law, there is no escape from liability.  Employers are strictly liable for supervisor harassment, regardless of whether there is a tangible employment action. The employer may assert as a defense, though, that the employee's damages should be reduced because of the employee's failure to avail herself of opportunities to avoid the harassment (avoidable consequences defense.)

So, the issue of who is a supervisor matters under both schemes.  California law defines supervisor in its statute (Govt. Code Section 12926(s): "'Supervisor' means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

Title VII does not define supervisor.  Some lower courts said that supervisors had to have the power to take tangible actions like firing, reassignment, etc.  The EEOC said supervisors merely have to have the power to direct the victim's work. Enter the Supreme Court.

Maetta Vance worked for Ball State University as a server in the catering department.  She complained that a co-worker, Saundra Davis, was her supervisor and harassed her over a period of time on the basis of her race.  Davis was a catering specialist, but she had no power to hire, fire, promote, demote, etc. Vance.  The lower courts threw out Vance's harassment claim because they found that Davis was not a supervisor and that Ball State was not negligent.

After reviewing precedent and the different supervisor formulations, the Court 5-4 decided

We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring,firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, supra, at 761. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance and substantially adopted by several courts of appeals.

It is unclear whether this decision will affect California law.  As stated above, California has a statutory definition of "supervisor."  In fact, that definition is taken from the National Labor Relations Act, Section 2(11).  And the majority in the Vance case said the NLRA definition was too broad and did not apply to Title VII harassment cases.  So, it appears that California's supervisor definition is broader than  the Court's definition in Vance.

In dissent, Justice Ginsburg, writing for four, argued that the majority's definition is too narrow and that Congress should define supervisor.

This case is Vance v. Ball St. University and the opinion is here.

Superman, Aliens, and Not Fitting In: 5 Moments in Man of Steel that (Unexpectedly) Touched Me

Last weekend, I went to see Man Of Steel, the new Superman movie directed by Zach Snyder.   I’ve always been a big fan of Superman movies – as a kid I watched each of the old Superman movies starring Christopher Reeve over and over (even the one with Richard Pryor as a computer genius!).  In those days, superhero movies were few, unlike today, when you can’t drive by a movie theater without bumping into one (or two playing simultaneously!).

But Man of Steel actually touched me in a way that most other films don’t these days.  It had nothing to do with the special effects or the over-the-top action sequences in the last third of the film.  Rather it had to do with not fitting in, as a kid or as an adult!  

Here are 5 very special moments from Man of Steel for those of us that don’t fit in: 

1.             A Young Clark Kent asks: “Mom, What’s Wrong With Me?”

Early in the movie a young Clark Kent, who realizes he’s different from other kids and can’t fit in at school, hides in a closet at his elementary school. When his mother (played by Diane Lane) comes to rescue him, you can sense his inner turmoil when he cries out: “Mom, what’s wrong with me??”

Whether we say it out loud or not, most of us who grow up different ask that question at some point in our childhood.  In my own case, not only did I not look like the other kids andhave a different religion, I was always drawn to geeky subjects (back when being geeky wasn’t cool).

I think that one of the reasons that stories of heroes like Clark Kent (or for a later generation, Harry Potter) appeal to so many kids is that they reassure us that it’s OK that we’re not “like everyone else”.  Secretly, it gives us hope that maybe we have other abilities – not exactly superpowers or magic – but other gifts that make us special.   Maybe it’s the ability to do math or write computer programs, maybe it’s the ability to dress weird and sing strange songs, or simply the power to imagine whole worlds in our heads that others can’t see or fathom.

Lady Gaga, in her Monster’s Ball concert in New York City, talked on stage about how she still feels like “a loser kind in high school” because of the way others treated her - she clearly didn't fit in.  And if like me, you were different enough that you couldn’t get a date in high school, remember words of wisdom from journalist Lester Bang from another film, Almost Famous: “That's because we're uncool. And while women will always be a problem for us, most of the great art in the world is about that very same problem.”

2. John Kent asks: What kind of man are you going to be?

There’s a great scene where a slightly older (but still young) Clark Kent is being bullied by school kids.  His father, John Kent, played by Kevin Costner, comes up and the kids move away to reveal that Clark is holding on very tight to a fence and holding back his anger and power.  You know he just wants to belt those kids.  And you knew he very well could!

Anyone who’s been bullied (whether in the schoolyard as a kid physically, or as an adult verbally by bigoted or opinionated people) knows this feeling of wanting to fight back!  As a kid this might mean curling up that fist and smashing them in the face. As an adult it might mean some more sophisticated form of revenge, or maybe, you still just want to belt them!  But like the teenage Clark, you don’t, because that’s not the kind of person you want to be.

As John Kent tells the confused young man at that moment:  “One day, you’re going to have to make a choice.  You have to decide what kind of man you want to grow up to be.  Whoever that man is, good character or bad, it’s going to change the world.”  .  I believe we all have to make choices like these and collectively how we choose affects the course of the planet.

What really touched me about Superman wasn’t that he was able to punch out General Zod in the skies of Manhattan and save the Earth.  It’s that the young Clark Kent saved all those kids in the schoolbus, even after they had been bullying him and calling him a freak.  That must’ve been tough.  Forgive, be kind to others, and as Kevin Costner says, “think about the kind of man you want to grow up to be.”

3.  Lois Lane tries to publish a story about UFO’s in the mainstream media.

In Man of Steel, when a respectable reporter, Lois Lane, discovers that there is a UFO and an “alien” (i.e. Clark Kent before he becomes Superman) hiding in plain sight, she attempts publish an article in her respectable newspaper, the Daily Planet.  The editor refuses to print it, saying “I’m not going to print a story about Aliens walking among us!”  She has to turn to some fringe conspiracy website as her only way to get the story out!  Now of course, this would never happen in real life...would it?  

When respected investigative journalist Leslie Kean got a call from retired members of European military saying that there was something to the UFO stories that have been proliferating and that they were putting out a report about this she got all kinds of warnings from her colleagues (spoken and unspoken) about the stigma around the subject, which she feared might be career suicide.  She wasn’t fitting in.  Luckily, she kept at it, and eventually wrote a New York Times bestseller that is a great book the subject for believers and skeptics alike: UFO’s: Generals, Pilots, and Government Officials Go On The Record.

When the late John Mack, a psychiatry professor at the Harvard Medical School (and Pulitzer prize winning author), made waves by writing that abduction phenomenon should be taken seriously back in the nineties, he was subject to all kinds of “harrumphing” by his colleagues at Harvard. To paraphrase Alan Dershowitz, a well known Harvard Law professor: There were certain things that you were and were not allowed to study as a Harvard professor.  Angels? That was a fine.  Aliens? Not so much.  Angela Hind wrote, "It was the first time in Harvard's history that a tenured professor was subjected to such an investigation." 

Again, you are free to write or study whatever you like, as long as it fits in. Sometimes, I feel that to be considered “respectable”, we are given a modern, socially enforced, equivalent of Henry Ford’s choice about the Model T: you can have any color you want, as long as it’s black!

4.    The young Kal-El escapes from a dying Krypton.

The scenes of Krypton in Man of Steel were visually stunning and moving, a virtual “film within a film”. But there was something else about this story that moved me.

The idea of escaping an advanced civilization during or just before a cataclysm is really the latest incarnation of a very popular old idea.  Somewhere, in our collective unconscious, as Jung called it, is the mythology of an advanced, dying civilization and the dual archetypes of the wise “old man” who foresaw its destruction and the “child” who escapes.   These patterns repeat themselves in stories that humans have been telling for thousands of years, ranging from the Lost Continent of Atlantis, Aeneas escaping the fall of Troy to found Rome, Noah escaping the Flood, the stories of the Anunakhi from the Sumerian texts, and numerous Native American myths of coming from “over the water” or “under the earth” after escaping a cataclysm (of fire, or water) to start a new civilization here in North America.

Most popularly it’s called the “Atlantis myth”, and if you imply that it might be something more than that among historical scholars - well, let's just say you won't fit in any longer!   In the modern view, civilization and technology advance linearly from simple to complex (like a very straight arrow).  But times like the Dark Ages after the fall of Rome, the loss of complex building techniques after the fall of Egypt, the loss of the library of Alexandria put a lie to this myth – the true path of advancement may be much more circular or spiral.

Whether it’s simply a collective psychological archetypal story that appeals to us, or an actual genetic memory of some long lost event in humanity’s deep past, there is something seriously worth studying in this collective mythos of an escape from an apocalypse (not to mention, in this latest version, as in some versions of the Atlantis myth, the Kryptonians misused the resources of the planet and this was responsible for the catastrophe).  How do we know, for sure, that we’re not living in an extended dark ages after the fall of some advanced civilization like a Krypton or Atlantis?  Don't ask.  You won't fit in.

5.    “Come on!  I grew up in Kansas. I’m about as American as you get!”

After being very skeptical of Superman, the humans (all Americans in this film), seem to realize that he brings them some benefits along with his “otherness”.  But this doesn’t stop them from trying to use surveillance drones on him to find out what “he’s up to”.  Sounds familiar, doesn’t it?

Unlike Snowden in the recent NSA spying scandal, the government doesn’t go after Superman  for “opting out” of the government spying program.  It’s too bad you or I can’t opt out.

In my opinion, this movie depicts an undertone in America against those who are “different” going way back:  Irish-Americans, Japanese-Americans, Jewish Americans, Catholic-Americans were all questioned  about their “Americanness” and had to “prove themselves”.  And if, like Superman, a Kyrptonian-American, you weren’t born here, so much the worse!  Hell, in Obama’s case, he was born here but still had his “American-ness” repeatedly questioned (though after the recent spying revelations, you might argue, like the New York Times did, that he’s proving himself just fine by becoming, in effect, George W. Obama).

This last scene of the film moved me personally.  In the aftermath of 9/11, I was shocked at the kind of questioning and looks I got whenever I left the big city, simply for being a Pakistani-American.  Sadly, I felt I had to be careful and diplomatic, not cause any waves, and not always say what I was thinking.  What was I really thinking? 

Honestly, I wanted to throw up my hands, as Superman did, and say: “Come on! I grew up in Michigan. I’m about as American as you get!”

These five moments in Man of Steel (among others) had a profound resonance for me (and I hope for others who don’t “fit in”).   Maybe that’s why I like speculative and fantastical fiction in general, it allows us to see truths about ourselves without ruffling any feathers since it’s “obviously fiction”!

So, maybe these 5 moments in the story may not be the same ones that appeal to the majority of the movie-going audience, or even to traditional Superman fans.  After all, I’m not talking about Life, Justice, and the American Way here. 

Or am I? After all, I never was very good at “fitting in”!

Supreme Court Upholds Express Class Action Waivers Regardless of Individual Claim's Value

Italian Colors restaurant challenged American Express's fees as violating anti-trust laws by filing a class action. But Colors signed an arbitration clause excluding class claims.   Colors argued that the cost of proving its case would be multiples of whatever it might recover.  Therefore, Colors contended, the class waiver impermissibly interfered with its ability to sue under federal law.  The Second Circuit court of appeals agreed with this premise, citing what is known as the "effective vindication" rule.  Under that rule, courts have held that arbitration agreements are invalid under the Federal Arbitration Act unless they permit "effective vindication" of federal statutory rights.

The Supreme Court, 5-3 with Justice Sotomayor recused, held that Colors is bound by its agreement to arbitrate, regardless of whether it is economically feasible to arbitrate its individual claim.  The majority's point is that Congress did not say in the anti-trust laws that a litigant must be able to bring a class action, or that litigation must be economically feasible.  Nothing in the arbitration agreement precluded or limited Colors' rights under the anti-trust law.  Further, anti-trust lawsuits and the Sherman Act predated the class action device.

The Court wrote:

Respondents argue that requiring them to litigate their claims individually—as they contracted to do—would contravene the policies of the antitrust laws. But the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.

The dissent (penned by Justice Kagan, with Ginsburg and Breyer concurring) essentially wrote that when the cost of bringing a claim under a federal statute significantly outweighs the potential recovery, then a class action right must be preserved as well.  The dissent stated that the majority opinion all but doomed Colors' case by rendering it prohibitively expensive to arbitrate.  Justice Kagan characterized the majority's response to that contention as, "Too darn bad."

This decision addresses class action waivers under federal law, not state law.  However, the majority does not appear to consider it a big difference whether the issue is if the FAA preempts state law or conflicts with federal law:

In dismissing AT&T Mobility [v. Concepcion] as a case involving pre-emption and not the effective-vindication exception, the dissent ignores what that case established—that the FAA’s command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low value claims. The latter interest, we said, is “unrelated” to the FAA. 563 U. S., at ___ (slip op., at 17). Accordingly, the FAA does, contrary to the dissent’s assertion, see post, at 5, favor the absence of litigation when that is the consequence of a class-action waiver, since its “ ‘principal purpose’ ” is the enforcement of arbitration agreements according to their terms.

This last point undermines the California Supreme Court's focus on "low value" claims (like wage-hour matters) as a factor in determining if a class action waiver is valid.   We are waiting to see what the California high court plans to do with its decision in Gentry v. Superior Court, which the court is reconsidering.

This decision is American Express Co. v. Italian Colors Rest.  and the opinion is here.

American Medical Association Creates Millions of New "Individuals With Disabilities"

At its June 18, 2013 annual meeting, the American Medical Association decided a new "policy":

Obesity as a Disease 

Today, the AMA adopted policy that recognizes obesity as a disease requiring a range of medical interventions to advance obesity treatment and prevention.
“Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans,” said AMA board member Patrice Harris, M.D. “The AMA is committed to improving health outcomes and is working to reduce the incidence of cardiovascular disease and type 2 diabetes, which are often linked to obesity.

The link is here.

Although the effect of this "policy" will have on employment law is unclear, the move could significantly increase ADA / disability discrimination and impose huge new reasonable accommodation obligations on employers. Why? Courts in the past generally have found that obesity in and of itself is not a covered "disability," but its effects (like high blood pressure, type 2 diabetes, heart disease) could be.  (We wrote about this some time ago here.)  If obesity itself is not a disability, the employer would not have a duty to accommodate an obese worker merely because the employee desired adjustments to the work area, for example. It should be noted, though, that some courts more recently have begun to recognize that significantly overweight people might have disabilities or at least be "regarded" as disabled.  The ADA Amendments Act's looser definition of "disability" is making it easier for courts to hold that an employee with nearly any impairment has a disability.

Anyway, if the AMA's recent policy results in more protection for the overweight as "disabled," without a showing of medical complications, then there could be a significant expansion of the duty to accommodate. Employers may have to take into account the obese in office space planning, ergonomics, etc.  What about physical job requirements?  And what of employers who do not hire the obese, or who require / encourage "wellness" plans for the heavyset?  Obese applicants, too, may be able to claim they were not selected due to their disability without any showing that the employer was aware of a latent disability.  

Of course "obesity" is a medical term and does not apply to all overweight people.  And it's too early to know what the AMA's policy statement will mean. But it's worth keeping an eye on this issue and planning for the future.

Happy 7th Anniversary to Shaw Valenza LLP

It seems like only yesterday that Jennifer Shaw and your humble correspondent started our firm.  (Of course, some days it feels like our 80th anniversary.)   Thank you to everyone who made it possible for us to be here for seven years!

The blog's about 7 years old too.  574 posts and at least that many page views.  We hope the information has been helpful, Dad. I kid, I know there are at least four non-relatives who read the blog too.  And thank you as well.

Greg

EEOC Again Goes After Criminal Background Checks

The EEOC is still filing lawsuits against employers who conduct criminal background checks as shown in this June 11 press release.  States are limiting criminal background checks too.  Based on the government's current hostility, it is important to review your background check policies and procedures frequently in all states in which you do business.

Our Fathers, Our Companies : Thoughts on Father's Day and Entrepreneurship

On this father’s day, I have been thinking about my own dad and his influence on my life and career as an entrepreneur.   In fact, the dedication I put onto the new edition of Zen Entrepreneurship, launched just last week, was:  “For my Dad, who brought us from the East, into the West”

My father was an immigrant from Pakistan, who packed up the family and brought us, back in the 1970’s, to the auto capital of the world, Detroit, where he hoped to put his economics background to good use.  From that time, he subtly and not-so-subtly encouraged us to think big, be ambitious, and even steered us towards tech entrepreneurship.

One Saturday in the early 1980’s, in the cold landscape of North Dakota, where we’d moved to because he couldn't find a decent job in Detroit during the recession,  he brought both us into his office. They had just bought an Apple II computer, and he wanted to show us that this would be the “next big thing”.  I still remember the first BASIC program that he taught us to write:

10 Print “Hello”

20 Goto 10

Well, after that I was hooked.  My brother and I competed to see who could build the better Tic Tac Toe games on the Apple II at my Dad's office after school.  Eventually we got our own Commodore 64 to program in.  The graphics were terrible – blocky lines that we used to draw X’s and O’s, but I remember my excitement when I figured out that I could have the computer play against a person (It didn’t occur to me until I saw WarGames with Mathew Broderick that you could have the computer play itself!).

My dad also brought out a copy of Time magazine that had a very young Steve Jobs on the cover with an apple on his head and showed it to us.  This was the only cover of Time that I remember him ever showing us (I just looked up the date – it was February 15, 1982), and the only cover of any magazine other than Mad that I remember from when I was kid.

Though my father wasn’t an entrepreneur himself, he always had an entrepreneurial mindset, and I think this had a lot to do with both my brother and I becoming entrepreneurs.   There was another side to this encouragement, of course - like most Asian parents that immigrated back then --  there were only a few “acceptable” professions for their kids: an engineer, lawyer, doctor, or entrepreneur. 

When I proudly announced that I was thinking of becoming an actor in high school, I remember him reprimanding me with some practical advice - if you want to be an actor, that's fine, but get an engineering degree so you can have a "real job" and make a living.  I listened (it turns out I was much better at computer programming than I was at acting!).  The funny thing is that my tech entrepreneurship eventually led me to be an angel investor in startups, which eventually led me to becoming a producer of independent films,  so it's call come back full circle.  

On this father’s day, I wonder what role encouragement from one’s dad (or mom, but we’ll talk about that on mother’s day!) plays in the (unconscious) decision to become an entrepreneur?

My co-founder in my very first (and most recent) company, Mitch Liu, had grown up with his dad running a small business in Seattle.  I also recall in my book that Mitch’s father had given us the funding so that we could afford to go to our first trade show, which launched our first product.

Years later, when I was at Stanford Business School, Steve Ballmer came to speak to to us.  He told us that Bill Gates had wanted Steve to leave business school to join Microsoft full-time. Steve’s own father wasn’t so sure since the company was just a fledliging startup at the time.  When Steve hesitated, Bill brought out the big guns to convince him that Microsoft was an opportunity that Steve couldn't pass up: Bill’s father.  According to Steve, whenever there was a serious negotiation in those early days and someone needed convincing, Bill would make them have dinner with his father, which would usually do the trick!

One of Bill Gates' neighbors, Naveen Jain, whom I met recently, co founder of Intellius and Moon Express, wrote a nice piece about his children becoming entrepreneurs at a very young age on Forbes:   http://www.forbes.com/sites/naveenjain/2012/06/17/the-source-of-my-greatest-happiness-have-always-been-our-children/

If their father hadn’t been such a successful entrepreneur and such an influence on them, I wonder if would they have become so entrepreneurial at such an early age?

Scott Walker, himself founder of Walker Law Group, tells us a cautionary taleabout his own father, who had started and took a telecommunications company public, making milions, and then losing them in a great read on this father's day: “3 Lessons for entrepreneurs on Father’s day”: http://blog.asmartbear.com/three-entrepreneur-lessons.html

As I think about it today, while I don’t believe that genetics has anything to do with it, I can say that most of the people that I know who’ve become entrepreneurs had some serious influence come down from their fathers.  So, on this Father’s day, as we appreciate our Dad’s, let’s also think about the influence we are having on the next generation - it could be a key factor in what direction they end up going down in their own path in life.

U.S. Supreme Court: Arbitrator Had Power to Interpret Whether Arbitration Agreement Allowed Class Actions

The Supreme Court infrequently issues unanimous decisions in matters that concern employers and employees. So, it was a bit of a surprise to see Oxford Health Plans v. Sutter, the Court's 9-0 decision today.  Then I noticed that the substantive claims are not employment law-related.  Still, this opinion  will affect class action arbitration, employment law and otherwise.

Sutter was a doctor. He and a class of doctors sued Oxford for failing to reimburse adequately under the insurance reimbursement contract. Oxford required Sutter to arbitrated his claim under this arbitration clause:

No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the rules of the American Arbitration Association with one arbitrator.

Once in arbitration, the parties agreed to let the arbitrator  decide whether the above language authorized classwide arbitration. The arbitrator held that it did.  When the Supreme Court issued Stolt Nielsen v. AnimalFeeds (when arbitration agreement is silent regarding class action arbitration, the default is to hold individual arbitrations), Oxford asked the arbitrator again to exclude class claims. The arbitrator again refused.

So, for a second time Oxford moved to vacate that finding under the Federal Arbitration Act.  The trial court, the court of appeals and the Supreme Court unanimously said, no can do:

Here, the arbitrator did construe the contract (focusing, per usual, on its language), and did find an agreement to permit class arbitration. So to overturn his decision, we would have to rely on a finding that he misapprehended the parties’ intent. But [Federal Arbitration Act] §10(a)(4) bars that course: It permits courts to vacate an arbitral decision only when the arbitrator strayed from his delegated task of interpreting a contract, not when he performed that task poorly.

As in other cases, the Court's decision in part turned on the litigation strategy of one of the parties. Possibly to garner more votes, Justice Kagan was pretty negative about the arbitrator's decision.  She suggested that a court might well have ruled a different way if Oxford had chosen to ask the district court to interpret the agreement instead of the arbitrator:

We would face a different issue if Oxford had argued below that the availability of class arbitration is a so-called “question of arbitrability.” Those questions—which “include certain gateway matters, such as whether parties have a valid arbitration agreement at all or whether a concededly binding arbitration clause applies to a certain type of controversy”—are presumptively for courts to decide. Green Tree Financial Corp. v. Bazzle, 539 U. S. 444, 452 (2003) (plurality opinion). A court may therefore review an arbitrator’s determination of such a matter de novo absent “clear[] and unmistakabl[e]” evidence that the parties wanted an arbitrator to resolve the dispute. AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649 (1986). StoltNielsen made clear that this Court has not yet decided whether the
availability of class arbitration is a question of arbitrability. See 559 U. S., at 680. But this case gives us no opportunity to do so because Oxford agreed that the arbitrator should determine whether its contract with Sutter authorized class procedures. See Brief for Petitioner 38, n. 9 (conceding this point). Indeed, Oxford submitted that issue to the arbitrator not once, but twice—and the second time after StoltNielsen flagged that it might be a question of arbitrability.

So, lesson learned.  If you think a court will follow Stolt-Nielsen more faithfully than an arbitrator, seek construction of your arbitration clause in court.

Bonus - the Court said this right up front:  "Class arbitration is a matter of consent: An arbitrator
may employ class procedures only if the parties have authorized them."  That does not bode well for those who would like the California Supreme Court to hold that class action waivers are illegal.

This case Oxford Health Plans LLC v. Sutter and the opinion is here.