# Petition for Rehearing — Brocail v. Detroit Tigers, Inc. (No. 09-72)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Rehearing
- **Published:** January 1, 2009

## Text

Court,
FILED

OCT 27 2009

OFFICE OF THE CLERK |

3u The
Supreme Court of the Anited States

@

DOUGLAS K. BROCAIL,

Petitioner,

V.

DETROIT TIGERS, INC.,

Respondent.

On Petition For Writ Of Certiorari
To The Court Of Appeals
For The Fourteenth District Of Texas

PETITION FOR REHEARING

LEVON G. HOVNATANIAN
MARTIN, DISIERE, JEFFERSON
& WispoM, L.L.P.

808 Travis, Suite 1800
Houston, Texas 77002
(713) 632-1700 — Telephone
(713) 222-0101 — Facsimile

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........
PETITION FOR REHEARING.
I INTRODUCTION
Bs ie We Bo once vets ren tnksssnwentccncescevsssnnsesss

Ii]. PRINCIPLES OF SECTION 301 PRE-
EMPTION

IV. GROUND FOR REHEARING................... ,

A. Section 301 Preemption And The
Reliance Element Of A State-Law
Fraud Claim — The Third Circuit Gets
It Right

Section 301 Preemption And The
Reliance Element Of A State-Law
Fraud Claim — The Eighth Circuit
Gets It Wrong

V. THE COURT SHOULD GRANT REVIEW... 14
GOOD FAITH CERTIFICATION OF COUNSEL.... 15

TABLE OF AUTHORITIES

CASES

Allis-Chalmers Corp. v. Lueck, 47]

Beidleman v. Stroh Brewery Co., 182 F.3d
(3d Cir. 1999)

Brocail v. Detroit Tigers, Inc., 268 S.W.3d 90
(Tex. App. — Houston [14th Dist.] 2008, pet.
denied)

Cramer v. Consolidated Freightways, Inc., 25!
F.3d 683 (9th Cir. 2001) (en banc)

Felix v. Lucent Techs., Inc., 387 F.3d 1146 (10th
Cir. 2004)

Foy vu. Pratt & Whitney Group, 127 F.3d 229 (2d
Cir. 1997)

Kittle v. Prudential Ins.

1029 (S.D. Ind. 2000)

Lingle v. Norge Diviston of Magic Chef, Ine.

486 U.S. 399 (1988) . 4,6, 8, 13,

Livadas v. Bradshaw, 512 U.S. 107 (1994)

Loewen Group Intl v. Haberichter, 65
1417 (7th Cir. 1995)

Merrill Lynch, Pierce, Fenner & Smith
Barchman, 916 F.Supp. 845 (N.D. Ill. 1996)..

Milne Employees Ass'n v. Sun Carriers, Inc.,
960 F.2d 1401 (9th Cir. 1991), cert. denied,
508 U.S. 959 (1993)

TABLE OF AUTHORITIES — Continued

Niehaus v. Greyhound Lines, Inc.,
1207 (9th Cir. 1999)

Northwestern Ohio Adm'rs, Inc. v. Walcher &
Fox, Inc., 270 F.3d 1018 (6th Cir. 2001), cert.
denied, International Ass'n of Bridge,
Structural, & Ornamental Iron Workers v.
Walcher & Fox, Inc., 535 U.S. 1017 (2002)

Operating Eng’rs Pension Trust ct. Wilson, 915
F.2d 535 (9th Cir. 1990), cert. denied, 505
UA MRE S26) 4 SE eRRrreneennpnn enc iam arts APM eoett 4

Trans Penn Wax Corp. v. McCandless, 50 F.é
217 (3d Cir. 1995)

Trustees of the Twin City Bricklayers Fringe

Benefit Funds v. Superior Waterproofing,
Inc., 450 F.3d 324 (8th Cir. 2006)

In re United States Office Prods. Co. Secs.
Littig., 251 F.Supp.24 Ti (19.1.0. ZOO) oo. cccccsescssccsseet

Voilas v. General Motors Corp., 170 F.3d 367
(3d Cir. 1999).

Williams v. NFL, I3d ;
2901928 (8th Cir. Sept. 11, 2009)..

STATUTES

29 U.S.C. § 185(a)

P|

PETITION FOR REHEARING

On October 5, 2009, the Court denied Douglas K.
Brocail’s petition for a writ of certiorari to review the
judgment of the Court of Appeals for the Fourteenth
District of Texas in Brocail v. Detroit Tigers, Inc., 268
S.W.3d 90 (Tex. App. — Houston [14th Dist.| 2008, pet.
denied). This petition for rehearing is timely filed
under Supreme Court Rule 44(2), which states in
relevant part that “[a|ny petition for the rehearing of
an order denying a petition for a writ of certiorari or
extraordinary writ shall be filed within 25 days after

”

the date of the order of denial...

INTRODUCTION

This appeal arose from the trial court’s grant of
summary judgment to the Detroit Tigers, Inc. on all
of Brocail’s claims against the Tigers. On April 3,
2008, the court of appeals issued its opinion and judg-
ment affirming the trial court’s summary judgment.
Brocail, 268 S.W.3d at 90, 94, 111.

The court of appeals held that section 301(a) of

the Labor Management Relations Act preempted

Brocail’s claim that the Tigers fraudulently induced
him to sign a contract with the Houston Astros
because that claim requires the interpretation of
Major League Baseball’s Collective Bargaining Agree
ment (“CBA”). Brocail, 268 S.W.3d at 102-03. Section

30 lla) proy ides:

Suits for violation of contracts between
an employer and aé_e labor” organization

representing employees in an_ industry
affecting commerce as defined in this chap-
ter, or between any such labor organizations,
may be brought in any district court of the
United States having jurisdiction of the
parties, without respect to the amount in
controversy or without regard to the
citizenship of the parties.

29 U.S.C. § 185(a).

Il. THE EVIDENCE

The Tigers signed Brocail, a relief pitcher, to a
guaranteed contract under which they agreed to pay
him salaries of $900,000 in 2000 and $2,000,000 in
2001. Later, during the 2000 season, Brocail began to
experience arm problems.

The Tigers required Brocail to see their team
physicians. His symptoms indicated a partially torn
medial collateral ligament, but one of the Tigers’ team

doctors said Brocail only had bone chips in his elbow.

The Tigers put Brocail on the disabled lst in
August 2000 and urged him to undergo what they
represented was the appropriate treatment. Brocail
specifically asked whether he had a torn ligament,
but the Tigers said his problem was just loose bone

fragments.

Beheving the Tigers, Brocail had surgery on

(F
on]

September 22, 2000. He then began physical therapy.

Major League Baseball’s annual winter meetings,
during which trades are traditionally made, were
scheduled for December. The Tigers could get more
for Brocail in a trade if it appeared the surgery had
been successful. Trading Brocail would also allow the

Tigers to unload his large guaranteed contract.

sy November of 2000, Brocail was still going to
physical therapy. He was not even able to throw a
baseball yet. But on November 7, 2000 — less than
two months after the surgery and in time for the

winter meetings the Tigers took Brocail off the

disabled list. Then, during the winter meetings, they

traded him to the Astros, relieving themselves of his
$2,000,000 salary.

srocail had, not bone chips in his elbow, but a
complete tear of the medial collateral ligament and a
near-complete tear of the flexor tendon in his pitching
arm. He was forced to undergo major surgery to

address the injuries.

Brocail could not pitch in 2001, 2002, or 2003,
and received no salary in 2002 and 2003. He was
finally able to return to baseball during the 2004

season.

srocail sued the Tigers in state court, alleging
they had fraudulently induced him to sign a contract

with the Astros

lil, PRINCIPLES OF SECTION 301 PRE-
EMPTION

If resolution of a state-law cause of action does
not require actual interpretation of a CBA, the claim
is “independent” of the CBA and not preempted.
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,
407 (1988). Even a need to “look to” a CBA is not
enough to find section 301 preemption of a state-law
claim. Livadas v. Bradshaw, 512 U.S. 107, 124-25
(1994).

“The plaintiff’s claim is the touchstone for |a

‘

section 301 preemption] analysis; the need to inter-

pret the CBA must tnhere in the nature of the
plaintiff's claim.” Cramer v. Consolidated Freight-
ways, Inc., 255 F.3d 683, 691 (9th Cir. 2001) (en banc)
Applied in tort cases, that rules means that a court
must determine “whether evaluation of the tort claim
is inextricably intertwined with consideration of the
terms of the labor contract.” Allis-Chalmers Corp. v
Lueck, 471 U.S. 202, 213 (1985). Because it frequently
is not, numerous courts have held that section 301

did not preempt a state-law fraud claim.

See, e.g., Northwestern Ohio Adm'rs, Inc. v. Walcher &
Fox, Inc., 270 F.3d 1018, 1081 (6th Cir. 2001), cert. denied
International Ass'n of Bridge, Structural, & Ornamental Iron
Workers v. Walcher & Fox, Inc., 5385 U.S. 1017 (2002); Niehaus ¢
Grevhound Lines, Inc., 173 F.3d 1207, 1212 (9th Cir. 1999);
Operating Engrs Penston Trust v. Wilson, 915 F.2d 535, 539 (9th
Cir. 1990), cert. dented, 505 U.S. 1212 (1992)

IV. GROUND FOR REHEARING

That a plaintiff bringing a state-law fraud claim
must prove reasonable reliance on the representation
is practically a universal rule. See In re United States
Office Prods. Co. Sees. Litig., 251 F.Supp.2d 77, 101
(D.D.C. 2003); Merrill Lynch, Pierce, Fenner & Smith
v. Barchman, 916 F.Supp. 845, 854 (N.D. Ill. 1996).
The question thus becomes whether a CBA must be
interpreted in order to determine if the plaintiff’s
reliance on the representation was reasonable. As will
be discussed below, two competing lines of cases have
emerged, and an opinion issued just last month has

brought the question to the forefront again.

A. Section 301 Preemption And _ The
Reliance Element Of A State-Law
Fraud Claim —- The Third Circuit Gets

it Right.
In Trans Penn Wax Corp. v. McCandless, 50 F.3d
217 (3d Cir. 1995), members of a collective bargaining
unit brought a state-law fraud claim against their
employer based on promises of job security. /d. at 220.
The employer “insistl[ed| section 301 preempts the
employees’ fraud claims because proof of fraud
requires clear and convincing evidence of justifiable

reliance by the recipient upon the misrepresentation.

Such an analysis, [the employer) argue[d], requires

an interpretation of the [CBA] to determine if the
employees justifiably relied on representations guar-

anteeing job security.” 50 F.3d at 231.

The Third Circuit observed that the law of the
pertinent state requires a plaintiff alleging fraud to
prove justifiable reliance on the misrepresentation
50 F.3d at 232. The court then held:

([Tlhe employees need not depend on the
[CBA] to satisfy these elements of state law
fraud. This is not a situation ... where the
alleged tort is a violation of duties assumed
in the [CBA]. An examination of the
employer’s behavior, motivation, and
statements does not substantially de-
pend upon the terms of the [CBA]. The
essence of the employees’ case is proof of
justifiable reliance on the separate guaran-
tees, not on the [CBAs]. As in Lingle, “L[eJach
of these purely factual questions per-
tains to the conduct of the employee
and the conduct and motivation of the
employer,” and may be appropriately
resolved under state law.

Id. (citations omitted).

[In Votlas v. General Motors Corp., 170 F.3d 367
(3d Cir. 1999), former GM employees alleged that GM
fraudulently induced them to accept early retirement

Id. at 370. GM argued that the “reasonable reliance”
issue required interpretation of the CBA because one
could not determine whether the plaintiffs acted
reasonably without weighing all of the contractual
options available to them. /d. at 376-77. But the
Third Circuit noted that “the reliance inquiry is not,
as GM suggestled], an investigation of the wisdom

of the particular choice made by the claimant, but

stead whether the claimant was acting justifiably

or reasonably in giving credence to the alleged

misrepresentation.” /d. at 377. “{TjJhe reliance
question focuses on whether GM’s repeated

insistence that the plant was going to close was
a representation worthy of belief. Patently, this
is not a question that depends upon an
interpretation of the [CBA|].” /d. (emphasis
added).

Nor would “resolving whether the employees
reliance was detrimental [ | require an investigation
of the terms of the |CBAs|].” 170 F.3d at 377. The

court elaborated:

To be sure, we anticipate that at trial he
question whether the plaintiffs were worse
off for having taken early retirement may
arise. However, the fact that the parties’
agreements may be referred to in the course
of deciding this issue is of little moment to
the preemption question before us. As the
Court emphasized in Livadas, “the bare fact
that a [CBA] will be consulted in the course
of state-law litigation plainly does not

require the claim to be extinguished.”
Id. (quoting Livadas, 512 U.S. at 124)

Other courts have taken the same approach a
the Third Circuit. In Felix uv. Lucent Technologie
Inc., 387 F.3d 1146 (10th Cir. 2004), the defendant
argue(d| that Plaintiffs’ fraud claims will require u

to interpret the CBA Defendant correctly point

out that Oklahoma law requires as an element of

fraud reasonable reliance On misrepresentations
ld. at 1164-65 (citation omitted The Tenth
Circuit concluded that the issue was the parties’

conduct, not the meaning of the CBA

Plaintiffs do not allege that Defendant made
any misrepresentations about the terms or
application of the CBA. Rather, they
allege that Defendant lied in informing them
regarding the choice between retiring under
the June plan or waiting until later
Therefore, there is simply no need to
interpret the CBA in order to ascertain
whether Defendant's representations were

false, and the actual meaning of the CBA
is not in dispute Plaintiffs’ state law
misrepresentation claims “depend upon

the employer’s behavior, motivation,
and statements, as well as plaintiffs’
conduct, their understanding of the
alleged offer made to them, and their
reliance on it.”

at L165 (quoting Foy { Pratt & Vv Aitney Group

235 (2d Cir. 1997)) (emphasis added)

Prudential Insurance Co., 102
kiSupp.2d 1029 (S.D. Ind. 2000), the defendant
“essentially suggestied| é resolution of Kittle’s
tate law claims is substantially dependant upon an
analysis of the CBAI.1” /d. at 1036. Relying on
Lingle and McCandless, the di | coneluded

(>| her W Isé

Kittle plainly asserts state law claims for
actual fraud, and arguably for constructive
fraud as well Klach tort requires a
plaintiff to prove in part that the defendant
deceptively represented a past or existing
material fact and that the plaintiff reason

ably relied on the misrepresentation

The factual core of these claims is
straightforward and discernable without
interpretation of the [CBA]. Kittle simply
alleges that Kemmerer represented and
promised that Kittle would receive exclusive
responsibility for Agency 68, an alleged fact

at odds with his actual assignment to Agency
117 (Wile find that consultation or
analysis of the CBA is wholly unnecessary to

resolve these factual matters
Id. (citations omitted)

The issue of whether the employee reasonably
relied on the alleged misrepresentation invokes the
employer's motivation, behavior, and statements, and
the employee's understanding and reaction. It doe
not require interpretation of a CBA. Therefore, as the
Third Circuit has held, it should not be a basis of

ection 301 preemption
rice oft the
fraudulent

ind \

reemptlion

LO

B. Section 301 Preemption And The
Reliance Element Of A _ State-Law
Fraud Claim - The Eighth Circuit Gets
It Wrong.

In Williams v. NFL, _. F.3d __, 2009 WL
2901928 (8th Cir. Sept. 11, 2009), the NFL suspended
Kevin Williams and Pat Williams, defensive hnemen
for the Minnesota Vikings, after they tested positive
for a banned substance. /d. at *3. The Williams sued
several defendants, including the NFL, for fraud. Id.

at *5 n.7.

The defendants argued that the Williams’ fraud
claim was “preempted because the Players cannot
demonstrate the requisite reasonable reliance to
prevail on their claims without resorting to the
CBA[.]” 2009 WL 2901928 at *13. The Eighth Circuit

agreed:

(T]he question of whether the Players can
show that they reasonably relied on the lack
of a warning that StarCaps (the dietary
supplement they took] contained bumetanide
the banned substance] cannot be ascer-
tained apart from the terms of the Policy
[which was expressly incorporated into the
CBA]... Because resolving the Players’ mis-

representation claims will require interpre-

tation of the Policy, they are preempted by
section 301.

at *13. The court reasoned:

One can only justifiably rely on a statement
which conflicts with the provisions of a

1]

wrilten agreement it has signed if the
agreement is couched in ambiguous legal
language which a layman could reasonably
believe supported the representation.

To determine whether [the plaintiff]
justifiably relied on the oral assurances
allegedly made by the [defendant], the trier
of fact would have to determine whether the
contractual language in the CBA was ambig-
uous enough for a layman reasonably to
believe that it was not contrary to the
representations on which [the _ plaintiff]
claims it relied. This would require the trier
of fact to examine the provisions in the
CBA. ... Since [the plaintiff] has the burden

to establish justifiable reliance, it would
have to show that all of the cited provisions
of the CBA could plausibly be read together
to be consistent with its alleged under-
standing ... Adjudication of the dispute and
resolution of the ... claims will necessarily
involve interpretation of the CBA.

Id. (quoting Trustees of the Twin City Bricklayers
Fringe Benefit Funds v. Superior Waterproofing, Inc.,
450 F.3d 324, 331, 332 (8th Cir. 2006)).

The Eighth Circuit’s rationale leads to pre-
emption when it is necessary only to read the CBA
to read it to determine if it contains a term which

contradicts the defendant's alleged representation. In

other words, when the plaintiff alleges that the
defendant said X, the Eighth Circuit finds pre-
emption on the ground that one must look at the CBA

i

to determine whether it states the opposite of X. “But

the review of the CBA needed to decide preemption in

this case is not in itself ‘interpretation’ warranting
preemption; if it were, the preemption doctrine under
§ 301 would swallow the rule that employees can
assert nonnegotiable state law rights that are
independent of their [CBAs].” Foy, 127 F.3d at 235
(citing Milne Empioyees Ass'n v. Sun Carriers, 960
F.2d 1401, 1409-10 (9th Cir. 1991), cert. denied, 508
U.S. 959 (1993)).

To assert that the justifiable reliance element
will require interpretation of the CBA

proves too much: a [CBA] can always be
consulted to determine whether an employee
is justified in relying upon an employer's
promise. The argument comes down to the
idea that an employee is never justified in
relying upon any promise by the employer
that is not enforceable under a CBA. If that
were so, the existence of a CBA would
require preemption in all cases involving
representations made to employees. But the
Supreme Court has recently clarified that
§ 301 preemption applies only when neces-
sary “to assure that the purposes animating
§ 301 will be frustrated neither by state laws
purporting to determine questions relating to
what the parties to a labor agreement
agreed, and what legal consequences were
intended to flow from breaches of that
agreement, nor by parties’ efforts to renege
on their arbitration promises by relabeling

as tort suits actions simply alleging breaches

of duties assumed in [CBAs].”
Foy, 127 F.3d at 235 (quoting Livadas, 512 U.S. at
122-23).

If resolving a state-law cause of action requires

interpreting a CBA, there is no doubt the claim is
preempted. See Lingle, 486 U.S. at 407. But the fact
that a CBA will be merely consulted in the course of
state-law litigation does not require preemption.
Livadas, 512 U.S. at 124.

The Fourteenth Court of Appeals made the same
mistake the Eighth Circuit made. It held that
“tblecause the CBA governs assignment of his
contract, Brocail’s claim that the |Tigers] fraudulently
induced him to enter a contract with the Astros is
preempted. In particular, it is necessary to interpret
the CBA to determine whether Brocail’s consent to
the assignment was necessary, and whether reliance
on any representation by the [Tigers] concerning
assignment of his contract was reasonable in light
of the CBA.” Brocarl, 268 S.W.3d at 103 (citation
omitted).

Whether Brocail’s consent was necessary can
be determined from simply reviewing the CBA. No
interpretation Is necessary.

Likewise, the question of whether’ Brocail’s
reliance on any representation the Tigers made was
reasonable requires consulting, but not construing,
the CBA. There is no provision in the CBA that sets
a standard for reasonable reliance or somehow

14

precluded Brocail from relying on the ‘Tigers’
representations.

V. THE COURT SHOULD GRANT REVIEW.

A need for interpretation is required for section

301 preemption, and a court’s mere examination of a

CBA is not tantamount to interpreting it. Loewen
Group Int’l, Inc. v. Haberichter, 65 F.3d 1417, 1428
(7th Cir. 1995); Milne Empleyees Ass’n, 960 F.2d at
1409. Losing sight of the latter fact, the Fourteenth
Court and the Eighth Circuit have put the simple
review of a CBA on par with interpretation. As a
result, the type of garden-variety, state-law tort
claims which preemption was never intended to reach
are being wrongly extinguished. To vindicate the
longstanding rule that “as long as the state-law claim
can be resolved without interpreting the agreement,”
the claim is not preempted (Lingle, 486 U.S. at 409-
10 (emphasis added)), Brocail respectfully asks the
Court to grant this petition, hear his case, and
reassert the dispositive distinction.

Respectfully submitted,

LEVON G. HOVNATANIAN

Counsel of Record

MARTIN, DISIERE, JEFFERSON
& Wispom, L.L.P.

8O8 Travis, Suite 1800

Houston, Texas 77002

(713) 632-1700 — Telephone

(713) 222-0101 — Facsimile

Attorneys for Petitioner
Douglas K. Brocail

i)

GOOD FAITH CERTIFICATION OF COUNSEL

Pursuant to United States Supreme Court Rule
44(2), I hereby certify that (1) this petition for

rehearing is presented in good faith and not for delay,

and (2) this Petition tor Rehearing is restricted to the
grounds specified in Rule 44(2). Specifically, this
Petition for Rehearing is restricted to “other

substantial grounds not previously presented.”

Signed this 27th day of October, 2009.

LEVON G. HOVNATANIAN

Counsel of Record

MARTIN, DISIERE, JEFFERSON
& Wispom, L.L.P.

808 Travis, Suite 1800

Iiouston, Texas 77002

(713) 632-1700 — Telephone

(713) 222-0101 — Facsimile

Attorneys for Petitioner

Douglas K. Brocail

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0767%3A2. Public record. Not legal advice.