Friday, February 16, 2018

Marsh v. J. Alexander's LLC (9th Cir. - Feb. 16, 2018)

When you've got (1) a majority opinion written by a hard core conservative, (2) over the dissent of a liberal judge, (3) with the swing vote provided by a district court judge sitting by designation, (4) that creates an express circuit split, (5) in a labor law case, (6) in which the Department of Labor appears as amicus curiae for the losing party, don't be surprised if the Ninth Circuit takes that panel opinion en banc.

I'm not sure it happens 100% of the time.  But, under those circumstances, I bet it's darn close.