Wisconsin Court of Appeals Issues Reminder of Power of Federal Arbitration Act


In the last generation, the U.S. Supreme Court has repeatedly promoted the policy under federal law in favor of arbitrating claims, including in the area of employment law. Among other issues, the Court has held on multiple occasions that employers can require employees to submit statutory employment claims to arbitration, whether via mandatory arbitration agreements (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)) or in collective bargaining agreements (14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009)). Likewise, the Court has held that the Federal Arbitration Act (“FAA”) allows contracting parties to agree to submit their disputes to arbitration even when state law requires those disputes to be resolved by an administrative agency (as is the case with employment discrimination claims under Wisconsin law). Preston v. Ferrer, 552 U.S. 346 (2008).

Earlier this week, the Wisconsin Court of Appeals issued another decision bolstering employers’ ability to mandate arbitration of employment claims.

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Seventh Circuit Cuts Through First Amendment Forum Jargon and Issues Robust Defense of Free Expression


Like many cities across the country, Fort Wayne, Indiana raises money through advertisements that it sells on the inside and outside of the buses it operates. And like many cities, Fort Wayne has a number of regulations on the content of those ads. Most of these regulations are uncontroversial – think of prohibitions on images or descriptions of violence, for example. A ban on ads that “express or advocate opinions or positions upon political, religious, or moral issues,” however, opens the door to problems.

Such an issue came before the Seventh Circuit in Women’s Health Link, Inc. v. Fort Wayne Public Transportation Corp., No 16-1195 (7th Cir. June 22, 2016). Health Link sought to display an ad with the picture of a young woman and the phrases “You are not alone.” and “Free resource for women seeking health care,” along with a phone number and a website address. The ad did not express any opinion on any “political, religious, or moral issues,” but Fort Wayne learned that Health Link was a pro-life organization that suggests alternatives to abortion for women with unplanned pregnancies and refused to allow the ad.

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The Seventh Circuit Empowers Litigants to Revisit Class Definitions


Class actions, and Rule 23 of the Federal Rules of Civil Procedure, have long been rife with controversy. It’s safe to assume that the Seventh Circuit’s decision last week in Fonder v. Sheriff of Kankakee Cnty., No. 15-2905 (7th Cir. May 26, 2016), will likely garner mixed reviews from the bar.

Fonder is a reminder that class certifications are not set in stone. Judge Easterbrook—who wrote for the court, joined by Judge Sykes and Judge Adelman from the E.D. Wis., who sat by designation—held that class definitions must be revisited when “evidence calls into question the propriety” of such definitions.

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Seventh Circuit Clarifies That Lawyers Can Appeal Nonmonetary Sanctions


Imagine that, at the end of a case, the judge decides to impose sanctions on you for the way in which you have handled discovery, or done something at trial. In the order requiring you and your client to pay your opponent some money, the judge holds forth at length as to the ways in which your conduct has fallen below the standards of appropriate professional behavior, including saying that your actions reflected dishonesty or were taken in bad faith. You want to appeal the sanctions order, but your client has had enough of the case and pays the entire financial portion of the sanctions order. Can you still appeal the judge’s finding that you have misbehaved in a way that is improper and sanctionable?

Your natural reaction is likely that of course you can appeal the nonmonetary sanction. How else can you rescue your reputation from the harm worked by the sanctions order?

Yet, until the May 23 decision in Martinez v. City of Chicago, (7th Cir. No. 15-2752), the Seventh Circuit’s case law would likely not have permitted you to appeal the nonmonetary sanction.

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Beware of Unguarded Talk: A Cautionary Tale of Privilege Waiver in Wisconsin


Loose lips sink ships.

And, at least according to the Wisconsin Court of Appeals, they can sink the protections afforded to privileged communications.

A decision last week in a criminal case could have considerable effect on a client’s waiver of the attorney-client privilege, in civil as well as criminal cases.

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