Amicus Curiae Brief — Ernst & Young, LLP v. Morris, 138 S. Ct. 51 (2017) (No. 16-300)

XE CORD =

- No. 16-800 OCT -7 206

OFFICE OF THE CLERK

In The

Supreme Court of the United States

an cam

ERNST & YOUNG LLP AND

ERNST & YOUNG US. LLP,

Petitioners,

Vv.

STEPHEN MORRIS AND

KELLEY MCDANIEL,

Respondents.

-

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF FOR AMICUS CURIAE

INTERNATIONAL ASSOCIATION OF DEFENSE

COUNSEL IN SUPPORT OF PETITIONERS

¢

MARY-CHRISTINE SUNGAILA ALEX R. STEVENS

Counsel of Record HAYNES AND BOONE, LLP

HAYNES AND BOonE, LLP 2323 Victory Ave., Suite 700

600 Anton Blvd., Suite 700 Dallas, TX 75219

Costa Mesa, CA 92626 (214) 651-5475

(949) 202-3062 Alex.Stevens@

MC.Sungaila@ haynesboone.com

haynesboone.com

Attorneys for Amicus Curiae

International Association of Defense Counsel

October 7, 2016

COCKLE LEGAL BRIEFS (800) 225-6964 oh

WWW COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE....................... 1

SUMMARY OF THE ARGUMENT ..................... 2

iii inet sititaneleheeiniheinacintiatinabihenibiad 4

I. The Ninth Circuit’s Analysis Incorrectly

Burdens the Proponent of Arbitration in

Contravention of this Court’s Analysis in

CompuCredit Corp. v. Greenwood..............

Il. The NLRA’s Broad Appellate Jurisdiction

Provisions Ensure that the Split of Au-

thority Concerning the Enforceability of

Employment Arbitration Class or Collec-

tive Action Waivers Will Reverberate

I diinictenimitnccenisanninaiatiinndnans

EIT incainiicctidaswsniiusiidcieniisinebesibdihineddenisibene

il

TABLE OF AUTHORITIES

Page

CASES

American Express Co. v. Italian Colors Rest. , 133

cco icnccnticncheieanbbbinienenibehaanivasibaaenes 1,5

AT&T Mobility LLC v. Concepcion, 563 U.S. 333

SUN atici:ddinib dideicsbheiuligibetiendigaaddmandebelalianestinieiibedadvaddnettas 4,5

Bloomingdale’s, Inc., 363 NLRB No. 172, 2016

NLRB LEXIS 314 (Apr. 29, 2016)..................0...-. aa

Cellular Sales of Mo., LLC v. NLRB, 824 F.3d

SI ences ichclaeltinaltsacebcnibpideaiansnenin 7

CompuCredit Corp. v. Greenwood, 132 S. Ct. 665

SII ciniiniineiienctinaanendanduitgeiiindiaidoniecenbiiaainmstabonia passim

D.R. Horton, Inc., 357 NLRB 2277 (2012).......... passim

D.R. Horton, Inc. v. Nat'l Labor Relations Bd.,

TARE ee Oe Ce CE Bi rccnccccecccccccocescoesccceccessceses 7

DIRECTV, Inc. v. Imburgia, 136 S.Ct. 463

TI Aiieicapiistclicbesdaaanbe hth atd gaitaieai bialaieitaaildlasanitiidasniasepiguinnietesens 1

Gilmer v. Interstate/Johnson Lane Corp., 500

RRL ARTE A ee Ieee Ne 5

Iskanian v. CLS Transp. L.A., LLC, 327 P.3d 129

SESE IE SR ey ales NN ea Ce 8

Johnmohammadi v. Bloomingdale’s, 755 F.3d

I a ic dinlanidabetindinndcemes 11

Labor Ready Sw., Inc., and Jason Kuller, Esq. of

Thierman Law Firm, P.C., 363 NLRB No. 138,

2016 NLRB LEXIS 159 (Feb. 26, 2016).................. 11

i

TABLE OF AUTHORITIES — Continued

Page

Lewis v. Epic Systems, 823 F.3d 1147 (7th Cir.

May 26, 2016), petition for cert. pending, Case

TT nist cides sd sala bihnacatieneiaensiintbateitieninesoorteroets 2

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Se EE II cccnecesensesnenteesevcnnrevestnceneesseccses: 3

Owen v. Bristol Care, Inc. , 702 F.3d 1050 (8th Cir.

Tlie cntemtions 7

Samsung Elecs. Am., Inc. v. NLRB, No. 16-60089

(5th Cir. 2016), consolidated sub nom. Jorgie

Franks v. NLRB, No. 16-10644 (11th Cir. 2016) ....... 12

Shearson/American Express, Inc. v. McMahon,

seca epsibntennnunins 4

Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559

SERRE iat a RR MRE Re ALC 5

Sutherland v. Ernst & Young LLP, 726 F.3d 290

(BG Ci, SOLS) CSP CUFIAM)......0cercecccsesccscesccesccevenes 2,7

Tallman v. Eighth Jud. Dist. Ct., 359 P.3d 113

a inbussiinnwounes 8

Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stan-

ford Jr. Univ., 489 U.S. 468 (1989)..................ce eee ee 5

STATUTES

EE IEEE EAL SAIS a a vee ee eS passim

I lelsdiompabeeniailintns 12

SE ER ce Ce 6

EEL SL a a ERNE passim

iv

TABLE OF AUTHORITIES — Continued

Page

BO ULB.C. © RGD) 0. cccevecovcecevcscosecesccessnecesneseesessseeenananal 6

, hit Fae & | 5 Een ee te 7,12

RULES

BD Gs B BID wns ccsvecvccececssesessccerscessocesosonsssnianneianiins 11

ieee, CO. BE OT scx ences ncsssenersscesmiconionc 1

1

INTEREST OF AMICUS CURIAE'

The International Association of Defense Counsel

(LADC), established in 1920, is an association of ap-

proximately 2,500 corporate and insurance attorneys

from the United States and around the globe whose

practice is concentrated on the defense of civil law-

suits. The IADC is dedicated to the just and efficient

administration of civil justice and continual improve-

ment of the civil justice system. The IADC supports a

justice system in which plaintiffs are fairly compen-

sated for genuine injuries, culpable defendants are

held liable for appropriate damages, and non-culpable

defendants are exonerated and can defend themselves

without unreasonable cost. In particular, the LADC has

a strong interest in the fair and efficient administra-

tion of class actions as well as arbitrations, both of

which are increasingly global in reach.

The abiding interest of the LADC in the benefits of

arbitration is exemplified by its participation as ami-

cus before this Court in several cases concerning fed-

eral arbitration law, including, inter alia, American

Express Co. v. Italian Colors Rest., 133 S. Ct. 2304

(2013); DIRECTV, Inc. v. Imburgia, 136 S.Ct. 463

* No counsel for a party authored this brief in whole or in

part. Neither a party, nor its counsel, nor any other entity other

than amicus curiae and counsel has made a monetary contribu-

tion intended to fund the preparation or submission of this brief.

Counsel for the parties were timely notified of the amicus’ intent

to file this brief under Sup. Ct. R. 37.2(a), and all parties have filed

general letters with the Clerk’s office consenting to the filing of

amicus briefs or have separately consented to the filing of this

brief.

2

(2015); and Lewis v. Epic Systems, 823 F.3d 1147 (7th

Cir. May 26, 2016), petition for cert. pending, Case No.

16-285.

+

SUMMARY OF THE ARGUMENT

The petition for writ of certiorari arises from an

undisputed, deepening circuit split — originating with

the Seventh Circuit’s opinion in Lewis v. Epic Systems

and deepening with the Ninth Circuit’s opinion in this

case — concerning an issue of federal statutory inter-

pretation and the enforceability of arbitration agree-

ments with class action or collective action waivers in

the employment context. In this amicus brief, we pro-

vide additional reasons why this Court’s guidance con-

cerning the impact of the National Labor Relations Act

(NLRA) on the enforceability of such arbitration agree-

ments under the Federal Arbitration Act (FAA) is

needed now, and not later.

In the decision below, the Ninth Circuit departed

from the Second, Fifth and Eighth Circuits and joined

the Seventh Circuit in holding that employer-employee

agreements to arbitrate employment disputes on an

individual basis are impermissible restrictions on em-

ployees’ rights to act in concert under the NLRA and

therefore unenforceable under the FAA. Notably, the

Ninth Circuit’s ruling directly contravenes the Second

Circuit’s ruling in Sutherland v. Ernst & Young LLP,

726 F.3d 290 (2013) (per curiam), in which the Second

Circuit found the same arbitration agreement to be

3

valid and enforceable and reversed the district court’s

denial of Petitioner's motion to compel arbitration.

Like the Seventh Circuit, the Ninth Circuit reached

this conclusion by improperly beginning its analysis

with a determination that such agreements could be

deemed unlawful under the NLRA and then looking to

whether the FAA changed this result. Instead, both

courts should have begun with the presumption of en-

forceability required by the FAA and this Court’s prior

decisions.

This Court should grant review now because the

Ninth Circuit’s holding increases the potential for col-

lateral unfair labor practice litigation before the Na-

tional Labor Relations Board (NLRB) for employers

across the country. Where employers seek to compel! in-

dividual arbitration of employment disputes pursuant

to a lawful arbitration agreement, they may face unfair

labor practice charges from the NLRB asserting that,

by seeking to compel arbitration, they committed an

unfair labor practice? — even if they successfully com-

pelled arbitration in a jurisdiction that enforces arbi-

tration agreements with class action waivers. And

because the NLRA’s broad appellate venue provisions

preclude any certainty regarding where such NLRB

decisions may be heard on appeal, there is no guaran-

tee that an appeal of an NLRB order invalidating an

* This approach amounts to punishing an employer for in-

voking its arbitration rights and improperly threatens the “em-

phatic federal policy in favor of arbitral dispute resolution”

underlying the FAA, which this Court has reaffirmed multiple

times. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 105

S. Ct. 3346, 3356 (1985).

4

arbitration agreement and declaring an employer to

have engaged in an unfair labor practice will be heard

in the same jurisdiction as the one that heard the mo-

tion to compel arbitration.

Thus, the uncertainty created by the circuit split

concerning the enforceability of employment arbitra-

tion agreements has repercussions across the country.

As a result, this Court should not wait for the circuit

split to deepen even further before taking up the issue.

—_____—¢

ARGUMENT

I. The Ninth Circuit’s Analysis Incorrectly

Burdens the Proponent of Arbitration in

Contravention of this Court’s Analysis in

CompuCredit Corp. v. Greenwood.

The FAA declares that arbitration agreements

“shall be valid, irrevocable, and enforceable, save upon

such grounds as exist at law or in equity for the revo-

cation of any contract.” 9 U.S.C. § 2. The FAA, and FAA

section 2 in particular, was intended to “‘revers[e] cen-

turies of judicial hostility to arbitration agreements,’

by ‘placling] arbitration agreements upon the same

footing as other contracts.’” Shearson/American Ex-

press, Inc. v. McMahon, 482 U.S. 220, 226 (1987) (citing

Scherk v. Alberto-Culver Co., 417 U.S. 506, 510-11

(1974)). The FAA reflects “a ‘liberal federal policy fa-

voring arbitration.’” AT&T Mobility LLC v. Concep-

cion, 563 U.S. 333, 340 (2011) (quoting Moses H. Cone

Mem 'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24

5

(1983); Buckeye Check Cashing Inc. v. Cardegna, 546

U.S. 440, 443 (2006)). This Court has repeatedly held

that the “fundamental principle [is] that arbitration is

a matter of contract,” Concepcion, 563 U.S. at 339

(quoting Rent-A-Center, West, Inc. v. Jackson, 561 US.

63, 67 (2010)); see also Stolt-Nielsen S.A. v. Animal-

Feeds Int'l Corp., 559 U.S. 662, 681 (2010); Volt Info.

Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489

U.S. 468, 479 (1989), and that courts must enforce ar-

bitration agreements according to their terms, Volt,

489 US. at 478; Stolt-Nielsen, 559 U.S. at 682; Concep-

cion, 563 U.S. at 339.

This Court has repeatedly upheld agreements re-

quiring the parties to arbitrate disputes individually,

rather than on a class or collective basis. See, e.g.,

American Express Co. v. Italian Colors Rest., 133 S. Ct.

2304, 2308-10 (2013); Concepcion, 563 U.S. at 352.

And this Court has further explained that these prin-

ciples apply “even when the claims at issue are federal

statutory claims, unless the FAA’s mandate has been

overridden by a contrary congressional command.”

CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669

(2012). These principles have been applied equally to

employment disputes, even where the claims at issue

implicated federal statutes that expressly provide for

class or collective action litigation. See, e.g., Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991)

(employee’s claims under the Age Discrimination in

Employment Act must be arbitrated “even if the arbi-

tration could not go forward as a class action”).

6

In contravention of this Court’s precedent, the

NLRB determined in 2012 that agreements requiring

individual arbitration of employment disputes un-

lawfully interfere with employees’ rights to engage in

“concerted activities for the purpose of collective bar-

gaining or other mutual aid or protection” under NLRA

Section 7. D.R. Horton, Inc., 357 NLRB 2277, 2279

(2012); see also 29 U.S.C. § 157. The NLRB further con-

cluded that such agreements violate NLRA Section

8(a)(1), which makes it an unfair labor practice to “in-

terfere with, restrain, or coerce employees in the exer-

cise of rights guaranteed in [Section 7].” Id. at 2280; see

also 29 U.S.C. § 158(a)(1). The NLRB accordingly or-

dered the employer-respondent to cease and desist

from invoking a mandatory arbitration agreement

with class and collective action waivers, and to rescind

or revise its existing arbitration agreement to clarify

that it did not constitute a waiver of the right to main-

tain employment-related class or collective actions. Jd.

at 2289.

NLRB orders are not self-enforcing. Rather, if an

employer does not voluntarily comply with a remedial

order issued by the NLRB, the NLRB may file a peti-

tion for enforcement with a United States circuit court

of appeals within any circuit where the unfair labor

practice in question occurred or where the person al-

leged to have committed an unfair labor practice

resides or transacts business. 29 U.S.C. § 160(e). Simi-

larly, “any person aggrieved by a final order of the

[NLRB]” may obtain judicial review and seek to have

the order modified or set aside by “any United States

7

court of appeals in the circuit in which the unfair labor

practice in question was alleged to have been engaged

in or wherein such person resides or transacts busi-

ness,” or in the D.C. Circuit. 29 U.S.C. § 160(f). The em-

ployer-respondent in D.R. Horton filed a petition for

review in the Fifth Circuit, and the NLRB filed a cross-

application for enforcement. The Fifth Circuit ulti-

mately refused to enforce the portion of the NLRB’s or-

der invalidating the employer’s arbitration agreement

on the basis of its class and collective action waivers,

finding the NLRB’s hostility to such waivers in em-

ployee arbitration agreements to be incompatible with

the FAA. D.R. Horton, Inc. v. Nat’l Labor Relations Bd.,

737 F.3d 344, 364 (5th Cir. 2013).

Despite the Fifth Circuit’s refusal to enforce the

NLRB’s order in D.R. Horton, employee-plaintiffs have

begun citing the NLRA in opposition to employer-de-

fendants’ attempts to enforce agreements to arbitrate

employment disputes on an individual basis. Until re-

cently, this argument met little success. The Second

Circuit affirmed the validity of the same arbitration

agreement that the Ninth Circuit rejected here (Suth-

erland, 726 at 297 & n.8), and the Fifth and Eighth

Circuits and the Supreme Courts of California and Ne-

vada also rejected the argument that the NLRA ren-

ders unenforceable employee-employer agreements to

resolve employment disputes in individual arbitration.

See Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772,

776 (8th Cir. 2016); Owen v. Bristol Care, Inc., 702 F.3d

1050, 1052, 1054-55 (8th Cir. 2013); D.R. Horton, Inc. v.

Nat'l Labor Relations Bd. , 737 F.3d 344 (5th Cir. 2013);

8

Iskanian v. CLS Transp. L.A., LLC, 327 P.3d 129, 141

(Cal. 2014); Tallman v. Eighth Jud. Dist. Ct., 359 P.3d

113, 122-23 (Nev. 2015).

But the Ninth Circuit in this case, like the Seventh

Circuit, reached the opposite conclusion in employ-

ment cases involving motions to compel arbitration,

concluding that arbitration agreements with class or

collective action waivers were unenforceable under the

NLRA. Both decisions relied on the FAA’s savings

clause, which creates an exception to the FAA’s pre-

sumption of enforceability “upon such grounds as exist

at law or in equity for the revocation of any contract” 9

U.S.C. § 2, and rejected this Court’s prescribed analysis

in CompuCredit, under which courts are required to

determine whether another federal statute like the

NLRA contains a “contrary congressional command” to

that of the FAA. 132 S. Ct. at 669. Rather, the Ninth

Circuit began with the conclusion that NLRA Section

7 creates a “substantive right” to the collective pursuit

of “work-related legal claims” and that an employment

arbitration agreement with a class or collective action

waiver “interferes with” concerted legal action, and

“cannot be enforced.” Pet. App. at la. Like the Seventh

Circuit, the Ninth Circuit relied on the FAA’s savings

clause to conclude that the FAA “does not dictate a con-

trary result.” Jd. at 12a.

Judge Ikuta dissented from the majority opinion

below, taking issue with virtually every step of the ma-

jority’s reasoning. (See id. at 25a-42a). As Judge Ikuta

explained, the relevant inquiry under CompuCredit is

whether an express “contrary congressional command”

9

appears in the statute at issue. Jd. (citing Compu-

Credit, 132 S. Ct. at 669). If not, the statute can and

should be harmonized with the FAA, which furthers

the strong federal policy in favor of arbitration. Jd. But

the Ninth Circuit majority inverted this analysis by

beginning with the NLRA and requiring the proponent

of arbitration to show that the FAA overrides the

NLRA, rather than beginning with the FAA’s pre-

sumption that arbitration agreements are enforceable

as written and requiring the party opposing arbitra-

tion to identify a “contrary congressional command”

overriding the FAA. See 9 U.S.C. § 2; CompuCredit, 132

S. Ct. at 669. As the dissent concluded, this “erroneous

reasoning leads to a result that is directly contrary to

Congress’s goals in enacting the FAA.” (See id. at p.

40a).

Il. The NLRA’s Broad Appellate Jurisdiction

Provisions Ensure that the Split of Author-

ity Concerning the Enforceability of Em-

ployment Arbitration Class or Collective

Action Waivers Will Reverberate Across

the Country.

The Seventh and Ninth Circuits’ hostility to arbi-

tration agreements with class action waivers affects

employers outside those circuits. This is because both

courts’ decisions pave the way for employee-plaintiffs

opposing arbitration to file collateral unfair labor prac-

tice charges against employers who seek to assert their

rights under the FAA.

10

As Petitioners’ brief notes (see p. 23), an employer's

“ability to enforce its uniform nationwide arbitration

provision depends on where a given employee is lo-

cated (or where the employee files suit).” But even if

an employer may have a modicum of certainty regard-

ing its ability to successfully compel arbitration in the

Second, Fifth, or Eighth Circuits, that does not pre-

clude collateral unfair labor practice litigation before

the NLRB. This is because the logical consequence of

the position that class and collective litigation is a pro-

tected “substantive” right is that any employer opposi-

tion to class or collective actions via efforts to enforce

a provision requiring individual arbitration unlawfully

“interferes with” this putative “right” in violation of

NLRA Section 8(a)(1). See 29 U.S.C. § 158(a)(1). In ac-

cordance with this interpretation, the NLRB has not

limited itself to ordering employers to rescind or revise

arbitration agreements with class or collective action

waivers, as it did in D.R. Horton. Instead, the NLRB

has taken its hostility to such agreements to its logical

conclusion, ordering employers to reimburse employee-

plaintiffs for fees spent opposing motions to compel in-

dividual arbitration. See, e.g., Bloomingdale’s, Inc. , 363

NLRB No. 172, 2016 NLRB LEXIS 314 at *26 (Apr. 29,

2016).

Neither the FAA nor this Court’s prior decisions

support treating efforts to enforce lawful, valid arbitra-

tion agreements like a poison pill that invites signifi-

cant litigation costs and collateral litigation.

11

Nevertheless, attorneys representing plaintiffs*® in em-

ployment class actions have already seized on the in-

creased leverage that a tactical unfair labor practice

charge may confer; so long as the circuit split remains,

this practice will be encouraged. Thus, an employer

facing an employment class action may successfully

compel arbitration in a state or federal district court,

and further successfully defend on appeal the court’s

order compelling the parties to arbitration. But the

NLRB may still pursue that employer in collateral un-

fair labor practice litigation. See id. at ** 15-26 (Apr. 29,

2016) (ordering employer to reimburse all fees ex-

pended by plaintiffs incurred in unsuccessfully oppos-

ing employer's motion to compel arbitration, even

though the Ninth Circuit affirmed the agreement’s en-

forceability, and that its opt-out provision rendered it

voluntary and not unlawful under the NLRA); see also

Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072

(9th Cir. 2014).

Moreover, because an appeal of an NLRB decision

ordering the reimbursement of attorneys’ fees incurred

in opposition to a successful motion to compel arbitra-

tion may be heard in nearly any circuit, an employer

may face inconsistent rulings and punishment for en-

forcing an arbitration provision that was already found

* Because the NLRB’s rules permit charges to be filed by

“any person,” 29 C.F.R. § 102.9, an attorney representing a group

of employees may file such a charge, even if no class members file

a charge themselves. See Labor Ready Sw., Inc., and Jason Kuller,

Esq. of Thierman Law Firm, P.C., 363 NLRB No. 138, 2016 NLRB

LEXIS 159 (Feb. 26, 2016).

12

to be enforceable by a different federal circuit court or

a state supreme court.

There is no certainty at the outset of unfair labor

practice litigation that an appeal of an NLRB order in-

validating such an agreement will land in a specific

venue. “[A]ny person” who is “aggrieved” by an NLRB

order may obtain review of the order in either the cir-

cuit in which the unfair labor practice was aileged to

have been committed, the circuit wherein such person

resides or transacts business, or the Court of Appeals

for the District of Columbia. 29 U.S.C. § 160(f). Fur-

ther, even if an employer timely files a petition for re-

view in its home circuit, another petition may be filed

in another circuit by another person “aggrieved” by

that NLRB order. When these competing petitions for

review are filed in different circuits on the same day,

the conflict is resolved by the judicial panel on multi-

district litigation selecting a circuit “by means of ran-

dom selection” and consolidating all other petitions

for review of the NLRB’s order there. 28 U.S.C.

§ 2112(aX(3); see also Samsung Elecs. Am., Inc. v.

NLRB, No. 16-60089 (5th Cir. 2016), consolidated sub

nom. Jorgie Franks v. NLRB, No. 16-10644 (11th Cir.

2016). Such consolidated appeals could easily end up

in the Seventh or Ninth Circuits.

As a result, employers across the country — even

those who “reside or transact business” outside the

Seventh or Ninth Circuits — cannot know whether the

lawfulness of their arbitration agreements will be as-

sessed in a jurisdiction that is faithful, or hostile, to

13

such agreements. This uncertainty may well lead em-

ployers to assess whether to promulgate, maintain, or

enforce arbitration agreements in light of the least-

protective jurisdictions, which would further under-

mine the Congressional policy expressed in the FAA.

We urge this Court to remedy the perverse incen-

tives for gamesmanship and tactical unfair labor prac-

tice litigation created by the Ninth Circuit’s decision

and the attendant deepening circuit split.

¢

14

CONCLUSION

For the foregoing reasons and for the reasons ex-

pressed in the Petition for Writ of Certiorari, the Peti-

tion should be granted.

Respectfully submitted,

MARY-CHRISTINE SUNGAILA

Counsel of Record

HAYNES AND BOONE, LLP

600 Anton Blvd., Suite 700

Costa Mesa, CA 92626

(949) 202-3062

MC.Sungaila@haynesboone.com

ALEX R. STEVENS

HAYNES AND BooNngE, LLP

2323 Victory Ave., Suite 700

Dallas, TX 75219

(214) 651-5475

Alex.Stevens@haynesboone.com

Attorneys for Amicus Curiae

International Association of

Defense Counsel