# Amicus Curiae Brief — Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019) (No. 17-988)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0807%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2019

## Text

No. 17-988

IN THE

Supreme Court of the United States

LAMPS PLUS, INC., et ai.,
Petitioners,
v.
FRANK VARELA,
Respondent.

On Petrrion ror a Wait or CERTIORARI TO THE UNITED
States Court or APPEALS FOR THE Ninta Circult

BRIEF AMICUS CURIAE OF THE
CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA IN

SUPPORT OF PETITIONERS
STEVEN P. LEHOTSKY Tuomas R. McCartuy
WARREN PosTMAN Counsel of Record
U.S. Cauamper Lirication Bryan K. Weir
CENTER, INc. Consovoy McCartTuy
1615 H Street, NW Park PLLC
Washington, DC 20062 3033 Wilson Boulevard, Suite 700
(202) 463-5337 Arlington, VA 22201
(703) 243-9423
tom@consovoymecarthy.com
Attorneys for Amicus Curiae

COUNSEL PRESS
(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

Page
CPUS os ccccccoccsocsvceseccocss i
TABLE OF CITED AUTHORITIES .............. ii
INTEREST OF AMICUS CURIAE ................ 1
INTRODUCTION AND SUMMARY

Be ENS do ccesccssccccecesccsccececed 2
Py codcccrcceecctecoceesecnsesetssoees 4

I. The Decision Below Patently Violates
BPE casceccdincndtanscansceseevseocced 4

A. The Decision Below Is A “Palpable
Evasion” Of Stolt-Nielsen ............... 7

B. The Panel Decision Also Runs

Afoul Of The Liberal Federal Policy
Favoring Arbitration ................... i)
Il. Summary Reversal Is Warranted............ 10
SEED occdéecectccesdeeedecesianesacesi 13

i

TABLE OF CITED AUTHORITIES

Page

CASES
14 Penn Plaza LLC v. Pyett,

EE ivcccenstovsoscccsseedsecesed i)
Agostini v. Felton,

A dccnecencnnssecencesacesves 12
American Express Co. v.

Italian Colors Restaurant,

BE ee Ps cc cccccccccccccccccccceses 1,4
AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011)... 2.2... e ewes passim
Citizens Bank v. Alafabco, Inc.,

Be ES s bo cdcceccdccsscccccecioccces 11
Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440 (2006) ... 2... eee ee 4, 6
CompuCredit Corp. v. Greenwood,

PEE 6 odeseetesccsececcesccessess 11
Dean Witter Reynolds, Inc. v. Byrd,

SEs bvecduacavicccecesecsoces 2,6
DirecTV, Inc. v. Imburgia,

136 S. Ct. 463 (2015)... ... 2... ee eee eee 8, 10, 11, 12

iit

Cited Authorities
Page
v. Stubbs,

489 U.S. 1084 (1989)... 2. ccc cece cece cecccces 11
Gilmer v. Interstate/Johnson Lane Corp.,

Be Es co doccenccsbescescvecccescene 4
Kindred Nursing Ctrs. v. Clark,

Be ab Ges EEE Pc cc ccccosccccccccccces 3, 8, 11
KPMG LLP v. Cocchi,

Be Eo baccdconccececaccccecceses 3, 11
Marmet Health Care Ctr. v. Brown,

SP PES wc ccccctocccccccccccocscces 11
Mastrobuono v. Shearson Lehman Hutton, Inc.,

EE, oo kecéveisunsstcccevenescccess 5
Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth, Inc.,

LS EPPO TTTTTTTTTTT TTT Tree 5,9
Moses H. Cone Mem’! Hosp. v.

Mercury Constr. Corp.,

SP DE e poet ercsccccccesccccescceeess 4
Nitro-Lift Techs., L.L.C. v. Howard,

SE EP covececccvecnccsesssoccase 3, 11

w

Cited Authorities

Oxford Health Plans LLC v. Sutter,

GED UTE. GEG GRE occ ccccccccccccccccces

Perry v. Thomas,

Ge ee PO ccccccccccccscecvesces

Scherk v. Alberto-Culver Co.,

Gy Ce TE occ eccevecccccscossece

Schweiker v. Hansen,

GP ee PEO ec ccc ccccccccccccceccees

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

GED ULE. GE GRRE. oc cccccccccccccccscces

Volt Information Sciences, Inc. v. Board of
Trustees of Leland Stanford Junior Univ.,

GP es GE Ge ov cscccccesccsccescces

STATUTES AND OTHER AUTHORITIES

LS ) SPerrrrrrrrryrrrrrr rrr rrr

Cited Authorities
Page
PE EE Dududecevnccacnvevdsdevecccesacees 1
Christopher R. Drahozal & Peter B.
Rutledge, Contract and Procedure,
OG ey Bes Se, HPI ccd vccescescccecccnd 6

Eugene Gressman et al., Supreme Court

Larry R. Leiby, Class Arbitrations Under Attack—
But Survive, 7 No. 1 Journal of the American
College of Construction Lawyers (Jan. 2013)....... 6

1
INTEREST OF AMICUS CURIAE'

The Chamber of Commerce of the United States of
America is the world’s largest federation of businesses
and associations. The Chamber represents three hundred
thousand direct members and indirectly represents an
underlying membership of more than three million U.S.
businesses and professional organizations of every size
and in every economic sector and geographic region of
the country. An important function of the Chamber is to
represent the interests of its members in matters before
the courts, Congress, and the Executive Branch.

To that end, the Chamber regularly files amicus
curiae briefs in cases that raise issues of concern to the
Nation’s business community. including cases involving
the enforceability of arbitration agreements. See, e..,
American Express Co. v. Italian Colors Restaurant, 570
U.S. 228 (2013); Ozford Health Plans LLC v. Sutter, 569
U.S. 564 (2013); AT&T Mobility LLC v. Concepcion, 563
U.S. 333 (2011).

Many of the Chamber’s members regularly employ
arbitration agreements in their contracts. Arbitration
allows them to resolve disputes promptly and efficiently
while avoiding the costs associated with traditional
litigation. Arbitration is speedy, fair, inexpensive, and

1. Pursuant to this Court’s Rule 37.6, counsel for amicus
curiae certifies that this brief was not authored in whole or in part
by counsel for any party and that no person or entity other than
amicus curiae, its members, or its counsel has made a monetary
contribution intended to fund the preparation or submission of this
brief. All parties have received timely notice of amicus curiae’s
intent to file and consented to the filing of this brief.

2

less adversarial than litigation in court. Based on the
legislative policies reflected in the Federal Arbitration
Act (“FAA”) and this Court’s consistent endorsement
of arbitration, the Chamber’s members have structured
millions of contractual relationships around arbitration

agreements.

Amicus thus has a strong interest in the faithful and
consistent application of this Court’s FAA jurisprudence
and, in particular, the FAA’s “two goals”—“enforcement
of private agreements and encouragement of efficient and
speedy dispute resolution.” Dean Witter Reynolds, Inc.
v. Byrd, 470 U.S. 213, 221 (1985).

INTRODUCTION AND SUMMARY
OF ARGUMENT

One of the fundamental precepts of the FAA is that
“arbitration ‘is a matter of consent, not coercion.” Stolt-
Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662,
681 (2010) (quoting Volt Information Sciences, Inc. v.
Board of Trustees of Leland Stanford Junior Univ., 489
U.S. 468, 479 (1989)); see also Volt, 489 U.S. at 478-79
(underscoring the congressional goal of “ensuring that
private arbitration agreements are enforced according
to their terms”). Consistent with that baseline precept,
this Court held in Stolt-Nielsen that “a party may not be
compelled under the FAA to submit to class arbitration
unless there is a contractual basis for concluding that
the party agreed to do so.” 559 U.S. at 684. Courts and
arbitrators thus may not infer “[a]n implicit agreement to
authorize class-action arbitration ... solely from the fact
of the parties’ agreement to arbitrate.” Jd. at 685.

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But that is precisely what the Ninth Circuit panel
majority (Reinhardt & Wardlaw, JJ.) did in this case.
The majority held that class arbitration was required,
notwithstanding the fact that there was no contractual
basis for doing so. To be sure, the panel purported to
rely on language within the arbitration agreement. But
that contract language did nothing more than replace
litigation with arbitration as the parties’ agreed-upon
mechanism for dispute resolution by waiving the right
to go to court and resolve disputes via trial. That is, the
relevant contract language did precisely what any garden-
variety arbitration agreement does: it waived “the right
to go to court and receive a jury trial.” Kindred Nursing
Ctrs. v. Clark, 137 S. Ct. 1421, 1427 (2017).

Judge Fernandez (in dissent) described the panel’s
decision as a “palpable evasion of Stolt-Nielsen.” Pet.
App. 5a. This is an apt description. But the decision is
even worse than that. By forcing class procedures on the
parties, the panel robbed the parties of the advantages
of arbitration as envisioned by the FAA, thereby running
afoul of the “liberal federal policy favoring arbitration.”
AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339
(2011).

Summary reversal is warranted here. See, e.g.,
Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17 (2012)
(per curiam); Marmet Health Care Ctr. v. Brown, 565
U.S. 530 (2012) (per curiam); KPMG LLP v. Cocchi, 565
U.S. 18 (2011) (per curiam). The decision below is clearly
erroneous; the panel’s evasion of Stolt-Nielsen is precisely
the type of hostility toward arbitration the FAA was
meant to eradicate; the decision threatens to undermine
the enforcement of arbitration agreements throughout the

4

Ninth Circuit; and, if left uncorrected, the decision may
green-light other circuits to engage in similar hostility
against the FAA.

ARGUMENT
I. The Decision Below Patently Violates The FAA.

In 1925, Congress responded to “centuries of judicial
hostility to arbitration agreements,” by enacting the FAA.
Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 (1974).
The FAA codified a “national policy favoring arbitration”
and “place[d] arbitration agreements on equal footing
with all other contracts,” Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 443 (2006); see also American
Express Co. v. Italian Colors Restaurant, 570 U.S. 228,
232 (2013) (“Congress enacted the FAA in response to
widespread judicial hostility to arbitration.”); Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)
(“(The FAA’s] purpose was to reverse the longstanding
judicial hostility to arbitration agreements that had
existed at English common law and had been adopted by
American courts, and to place arbitration agreements
upon the same footing as other contracts.”).

Section 2 is the FAA's centerpiece. See Moses H. Cone
Mem 'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24
(1983). It makes written arbitration agreements “valid,
irrevocable, and enforceable” as a matter ‘« federal law,
“save upon such grounds as exist at law or in equity for the
revocation of any contract,” 9 U.S.C. § 2; see also Perry
v. Thomas, 482 U.S. 483, 489 (1987). Section 2 “create[s]
a body of federal substantive law of arbitrability,” id., a
“principal purpose” of which is to “ensurfe] that private

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arbitration agreements are enforced according to their
terms,” Volt, 489 U.S. at 478-79.

Consistent with this purpose and the consensual
nature of arbitration, parties “are generally free to
structure their arbitration agreements as they see fit.”
Mastrobuono v. Shearson Lehman Hutton, Inc., 514
U.S. 52, 57 (1995) (quotation omitted). And courts and
arbitrators must “give effect to the[ir] contractual rights
and expectations,” Volt, 489 U.S. at 479. Accordingly,
parties may (and often do) agree on the issues they choose
to arbitrate, the forum in which the arbitration will take
place, the rules under which arbitration will proceed, and
who will resolve specific issues. See Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628
(1985); Volt, 489 U.S. at 479; Stolt-Nielsen, 559 U.S. at 683.

As the Court explained in Stolt-Nielsen, parties also
“may specify with whom they choose to arbitrate their
disputes.” 559 U.S. at 683. Because courts and arbitrators
must “give effect to the intent of the parties ... it follows
that a party may not be compelled under the FAA to
submit to class arbitration unless there is a contractual
basis for [doing so].” /d. at 684. And because the shift
from bilateral to class arbitration interferes with the
fundamental attributes of arbitration as envisioned by
the FAA, the Court explained, “it cannot be presumed the
parties consented to [class arbitration] by simply agreeing
to submit their disputes to an arbitrator.” /d. at 685. To
so presume would violate the FAA’s purpose of ensuring
that arbitration agreements are enforced “according to
their terms.” Volt, 489 U.S. at 478-479.

6

Moreover, requiring class procedures in arbitration
where they are not consensual would violate the FAA's
other primary purpose—“encourag{ing] efficient and
speedy dispute resolution.” Dean Witter Reynolds, 470
U.S. at 221. Consistent with the “national policy favoring
arbitration,” Buckeye Check Cashing, 546 U.S. at 443, the
FAA was meant to promote “streamlined proceedings and
expeditious results,” Preston v. Ferrer, 552 U.S. 346, 357-58
(2008) (quotation omitted). But imposing class procedures
on arbitration would replace the advantages inherent
in bilateral arbitration—informality, inexpensiveness,
efficiency—with “procedural formalit{ies]” that “make |
the process slower [and] more costly.” Concepcion, 563
U.S. at 348-49. In short, this would “interfere| | with
fundamental attributes of arbitration and thus create| |
a scheme inconsistent with the FAA.” /d. at 344. That is
why “express contract provisions permitting arbitration
on a class basis are rare.” Christopher R. Drahozal &
Peter B. Rutledge, Contract and Procedure, 94 Marq.
L. Rev. 1103, 1160 (2011); see also Larry R. Leiby, Class
Arbitrations Under Attack—But Survive, 7 No. 1 Journal!
of the American College of Construction Lawyers 4 (Jan.
2013) (“An arbitration agreement or clause that expressly
provides for class arbitration would be rare. The author
has never seen one.”).

As explained more fully below, the panel held that
the parties must proceed to class arbitration based sole) ,
on routine contractual language of the kind found ir. ans
arbitration agreement—that is, without “a contractiia!
basis for concluding that the part{ies] agreed to [class
procedures].” Stolt-Nielsen, 559 U.S. at 684. “The
panel’s conclusior. [thus] is fundamentally at war with the
foundational FAA principle that arbitration is a matter of

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consent.” /d. at 684. On top of that, the panel’s decision is
inconsistent with the national policy in favor of arbitration.
Concepcion, 563 U.S. at 339.

A. The Decision Below Is A “Palpable Evasion”
Of Stolt-Nielsen.

As noted above, Stolt-Nielsen makes clear that courts
and arbitrators may not infer “[ajn implicit agreement
to authorize class-action arbitration ... solely from the
fact of the parties’ agreement to arbitrate.” 559 U.S. at
685. “(T]he FAA requires more.” /d. at 687. The Court
left open in Stolt-Nielsen how much more is required. /d.
at 687 n.10. But as Petitioners put it, the panel majority
“resolv[ed| the question left open in Stolt-Nielsen in a
manner fundamentally incompatible with Stolt-Nielsen
itself.” Pet. 13.

The panel relied on three provisions of the arbitration
agreement in holding that the parties must proceed
to class arbitration. Specifically, the panel relied on
Respondent’s waiver of “any right I may have to file a
lawsuit or other civil action or proceeding relating to my
employment with the Company” and “any right I may have
to resolve employment disputes through trial by judge or
jury,” as well as his agreement that “arbitration shall be in
lieu of any and all lawsuits or other civil legal proceedings
relating to my employment.” Pet. App. 3a.

But these provisions do nothing more than replace
litigation with arbitration as the parties’ mechanism for
dispute resolution—by waiver of the right to go to court
and resolve disputes via a jury (or bench) trial. Every
arbitration agreement does at least this; indeed, “a waiver

8

of the right to go to court and receive a jury trial” is “the
primary characteristic of an arbitration agreement.”
Kindred Nursing Ctrs., 137 S. Ct. at 1427. Petitioners thus
are correct to point out that, if these routine provisions
“were enough, then any arbitration agreement that does
not expressly waive class procedures could support an
inference that the parties agreed to class arbitration.”
Pet. 13.” That is, the opinion in practice creates a default
rule that ordinary arbitration agreements result in class
arbitration unless the parties expressly disclaim this
result. The Ninth Circuit has thus inverted the holding
of Stolt-Nielsen.

Judge Fernandez was accordingly correct to describe
the panel majority’s decision as a “palpable evasion
of Stolt-Nielsen.” Pet. App. 5a. Indeed, the panel’s
(mis)application of Stolt-Nielsen would reduce that
important precedent to a practical nullity. Pet. 13. Stolt-
Nielsen would have no effect—except for in the rare
case where parties stipulate that contractual silence
on the issue of class arbitration means “there’s been no
agreement that has been reached on that issue.” 559 U.S.
at 668-69 (quotation omitted); see Pet. App. 2a.

2. As Petitioners explain, the canon construing ambiguous
contract language against the drafter has no effect here. See Pet.
18-19. “[T Jhe reach of [that canon] must have limits, no matter who
the drafter was.” DirecTV, Inc. v. Imburgia, 136 S. Ct. 463, 470
(2015). The key limit here, of course, is that the relevant contract
language must be ambiguous. But the provisions relied upon by the
panel are “not ambiguous.” Pet. App. 5a (Fernandez, J, dissenting).
Given a proper reading, the agreement “demonstrat/ies] the parties’
intent to engage in traditional, bilateral arbitration.” Pet. 14.

9

B. The Panel Decision Also Runs Afoul Of The
Liberal Federal Policy Favoring Arbitration.

As explained above, the panel violated Stolt-Nielsen’s
rule that “a party may not be compelled under the FAA
to submit to class arbitration unless there is a contractual
basis for concluding that the party agreed to do so.” 559
U.S. at 684. By requiring class arbitration where it is not
consensual, the panel also ran afoul of the “liberal federal
policy favoring arbitration.” Concepcion, 563 U.S. at 339
(quotation omitted).

As the Court has emphasized, “[its] cases place it
beyond dispute that the FAA was designed to promote
arbitration.” Jd. at 345. To the point, the Court has
repeatedly remarked that the “prime objective” of
arbitration to “achieve streamlined proceedings and
expeditious results,” Preston, 552 U.S. at 357-58 (quotation
omitted), and that this is why parties choose arbitration
as a means of resolving their disputes, see 14 Penn Plaza
LLC v. Pyett, 556 U.S. 247, 257 (2009) (“Parties generally
favor arbitration precisely because of the economics of
dispute resolution.”); see also Mitsubishi Motors, 473 U.S.
at 633 (“[I]}t is typically a desire to keep the effort and
expense required to resolve a dispute within manageable
bounds that prompts them mutually to forgo access to
judicial remedies.”).

As the Court explained in Concepcion, requiring
classwide arbitration where it is not consensual interferes
with the fundamental attributes of arbitration and
undermines its prime objectives. “[S}witch{ing] from
bilateral to class arbitration sacrifices the principal
advantage of arbitration—its informality.” 563 U.S. at 348.

10

Indeed, “class arbitration requires procedural formality.”
Id. at 349. It thus makes dispute resolution “slower, more
costly, and more likely to generate procedural morass than
final judgment.” /d. at 348. By shifting to class arbitration,
then, “the expedition, informality, and cost-savings of
traditional bilateral arbitration are lost.” Pet. 25.

At the same time, shifting to class arbitration “greatly
increases risks to defendants,” Concepcion, 563 U.S.
at 350—because of the sharply limited judicial review
inherent in arbitration. As the Court has noted, “(t]he
absence of multilayered review makes it more likely that
errors will go uncorrected.” /d. Parties are willing to
accept these errors when “their impact is limited to the
size of individual disputes” and “outweighed by savings
from avoiding the courts.” /d. But when faced with the
prospect of damages aggregated among thousands of
claimants, the risk of error becomes to great to bear. /d.
(“Faced with even a small chance of a devastating loss,
defendants will be pressured into settling questionable
claims.”).

Class arbitration thus negates the chief advantages
of arbitration and magnifies its disadvantages. It is “not
arbitration as envisioned by the FAA.” /d. at 351. Rather,
it “is a worst-of-both worlds hybrid of arbitration and
litigation.” Pet. 25. Accordingly, the imposition of class
procedures (where it is nonconsensual) flouts the FAA
and its federal policy in favor of arbitration.

Il. Summary Reversal Is Warranted.

“No one denies that lower courts must follow this
Court’s holding{s].” DirecTV, Inc. v. Imburgia, 136 S.

11

Ct. 463, 468 (2015). Thus is true in FAA cases, just the
same as in all other areas of the law. See id. Accordingly,
when lower courts fail to apply this Court’s decisions
interpreting the FAA, the Court has not hesitated to
intervene. See Kindred Nursing Ctrs., 137 S. Ct. at 1427-
28; Imburgia, 136 S. Ct. at 468-71. In fact, the Court has
summarily reversed “several times in recent years to set
aside manifest failures by lower courts to adhere to this
Court’s arbitration rulings.” Pet. 27. See Nitro-Lift, 568
U.S. 17; Marmet Health, 565 U.S. 530; Cocchi, 565 U.S.
18; Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003)
(per curiam).

Summary reversal is undoubtedly “strong medicine.”
Dudley v. Stubbs, 489 U.S. 1034, 1039 (1989) (O’Connor,
J., dissenting). But this is one of those cases in which that
medicine is needed. The relevant law “is settled and stable,
the facts are not in dispute, and the decision below is
clearly in error.” Eugene Gressman et al., Supreme Court
Practice 350 (9th ed. 2007) (quoting Schweiker v. Hansen,
450 U.S. 785, 791 (1981) (Marshall, J., dissenting)); see also
id. at 352 (“[T]he Court has shown no reluctance to reverse
summarily a ... decision found to be clearly erroneous.”).
And this is not the first time the Ninth Circuit has failed
to properly apply the FAA and this Court’s precedents
interpreting it. See, e.g., Concepcion, 563 U.S. 333;
CompuCredit Corp. v. Greenwood, 565 U.S. 95 (2012).

Summary reversal is especially warranted given the
judicial hostility to arbitration exhibited by the court
below. Pet. 27 (“It is hard to imagine a result more inimical
to the strong federal policy favoring arbitration embodied
by the FAA.”). As Judge Fernandez aptly put it, the Ninth
Circuit’s decision is a “palpable evasion of Stolt-Nielsen,”

12

App. 5a (Fernandez, J., dissenting). Indeed, the panel
“underruled” Stolt-Nielsen, rendering it a nullity within
the Ninth Circuit. See supra p. 8. Lower courts, of course,
are not permitted to nullify this Court’s precedents.
Although they are “free to note their disagreement with
a decision of this Court,” /mburgia, 136 S. Ct. at 468,
they nonetheless must follow it. Only “this Court [has]
the prerogative of overruling its own decisions.” Agostini
v. Felton, 521 U.S. 203, 237 (1997) (quuting Rodriguez
de Quijas v. Shearson/American Express, Inc., 490 U.S.
477, 484 (1989)).

If left uncorrected, the panel decision would
undermine the enforcement of arbitration agreements
throughout the Ninth Circuit. Defendants across the nine
States within the circuit who have entered into “ n-
variety arbitration agreements like the one in this case ...
will be deterred from enforcing them whenever the claims
at issue are potentially subject to class-wide treatment.”
Pet. 26-27.

Worse still, decisions like the one below, if left
unchecked, allow judicial hostility to arbitration to persist
elsewhere and may green-light other circuits to engage in
similar hostility against the FAA. This would upset the
uniform, faithful application of the FAA that is critical to
amicus and its members.’

3. An additional factor weighing in favor of summary
reversal is the panel’s issuance of its decision as an unpublished
memorandum disposition. Pet. App. la. Given the presence of a
dissent—particularly one that deemed the panel decision contrary
to this Court’s precedent—the decision was clearly a contestable
one and cannot fairly be passed off as a routine application of
settled precedent. This Court should not allow an “unpublished”

13

CONCLUSION
Amicus curiae respectfully requests that the Court
grant the petition for certiorari and summarily reverse
the judgment of the Ninth Circuit.

Respectfully submitted,

STEVEN P. LEHOTSKY Tuomas R. McCartuy
WARREN PosTMAN Counsel of Recora
U.S. CuampBer LiricaTion Bryan K. WEIR
CENTER, INc. Consovoy McCartuy
1615 H Street, NW Park PLLC
Washington, DC 20062 3033 Wilson Boulevard, Suite 700
(202) 463-5337 Arlington, VA 22201
(703) 243-9423
tom@consovoymecarthy.com
Attorneys for Amicus Curiae

February 12, 2018

designation to insulate such contestable and important holdings
from further review.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0807%3A05. Public record. Not legal advice.