Wednesday, August 27, 2014

Alexander v. FedEx (9th Cir. - Aug. 27, 2014)

Judge Fletcher holds that FedEx drivers aren't independent contractors even though FedEx tries to make them ones.  Judge Trott, joined by Judge Goodwin, fully agrees with everything Judge Fletcher says.  But nonetheless writes separately to take FedEx's counsel -- O'Melveny & Myers -- to task for its brief.  Here's the first paragraph of Judge Trott's concurrence:

"The resolution of this case as a matter of granting summary judgment to the drivers is far from simple, as the length and complexityof Judge Fletcher’s meticulous opinion demonstrates. It has not been made easier by FedEx’s brief, which, by quoting part of a sentence from an admission — but not all of it — creates a rosier picture of the drivers’ state of mind than the record supports."

Judge Trott then goes on to talk about the importance of not using out-of-context quotations,"the regrettable lesson that the basic information we require to resolve a controversy is not always found in the parties’ briefs, but in the ungilded record itself," and his suggestion (to O'Melveny & others) that "[l]awyers would be well advised not to elide the truth, the whole truth, and nothing but the truth."

Not something you really want the Ninth Circuit to say as a commentary on your (losing) brief.