Amicus Briefs
Love V. Johanns

The plaintiffs in this case, female farmers, challenged the lending practices of the USDA, alleging systemic gender discrimination. Specifically, the plaintiffs complained the USDA has a centralized policy of delegating the authority to make lending decisions to an almost exclusively male staff and allowing them excessive discretion in making these decisions. The plaintiffs further claimed that lending decisions were based at least in part on highly subjective criteria and that the USDA's policy resulted in fewer and/or smaller loans granted to female farmers than to male farmers.

The lower court denied class certification, and the plaintiffs appealed to the DC Circuit. For the appeal, M&S attorneys Pamela Coukos and Anna Pohl wrote an amicus brief filed on behalf of the Impact Fund, the Lawyers' Committee for Civil Rights Under Law, and the National Employment Lawyers Association (NELA). The brief addressed the ways the lower court's analysis departed from well-established law of the Supreme Court and multiple Circuit courts, and also the potential policy implications of excessively narrow approaches to class certification questions involving excessively subjective lending practices. These legal and policy issues mirror issues raised by excessively subjective employment practices. The brief also addressed recent appellate authority on certifying monetary damages claims for civil rights violations under Rule 23(b).

Dukes v. Wal-Mart Stores

The plaintiffs in this case successfully certified a nationwide gender class action, claiming the country's largest retail chain systematically discriminates against women. The defendant appealed the class certification ruling to the 9th Circuit. For the appeal, M&S Of Counsel Pamela Coukos wrote an amicus brief filed on behalf of the National Employment Lawyers Association (NELA), the National Partnership for Women and Families and the National Women's Law Center, addressing the certification of cases involving excessively discretionary and subjective employment practices. The brief explained why considering these cases on a classwide basis is appropriate, and also why the court should view Wal-Mart's tap on the shoulder promotion practices and free-wheeling compensation schemes as potentially providing a conduit for gender bias to enter the decision-making process.

The plaintiffs prevailed in the 9th Circuit, and Wal-Mart petitioned for rehearing en banc.  In support of the plaintiffs' opposition to rehearing en banc, M&S Of Counsel Pamela Coukos and Associate Sandi Farrell wrote a second amicus brief, again filed on behalf of NELA, the National Partnership for Women and Families, and the National Women's Law Center.  The brief addressed two issues: first, that classwide challenges to subjective employment practices satisfy Rule 23(a)'s commonality requirement; and second, that neither Title VII nor Title VII case law require individualized hearings to determine class member entitlement to remedies such as backpay.

Israel v. Avis Rent-a-Car Systems

Cyrus Mehri and Pamela Coukos represented the NAACP, the American Jewish Congress, the Georgia State Conference of the NAACP, the Mexican American Legal Defense & Education Fund, the National Council of Jewish Women, the NOW Legal Defense & Education Fund and the Rainbow/PUSH Coalition, before the U.S. Court of Appeals for the Eleventh Circuit. The plaintiffs alleged that Avis had an explicit policy of discriminating against Jewish businesses and individuals in car rentals. The lower court certified the case as a class action, and the defendant appealed. The M&S amicus brief argued that precedent should be interpreted to make it easier to challenge discriminatory corporate practices. Although the appellate court ultimately ruled against the Avis plaintiffs, the decision cited our amicus brief in limiting its impact on employment discrimination cases.

Cooper v. Southern Company

Mehri & Skalet has attempted to file two amicus briefs in this case, where the plaintiffs sought class certification for claims of race discrimination in pay and promotions in a case with serious allegations of racist conduct, including the display of multiple nooses in the workplace. The lower court denied class certification, and the plaintiffs initially appealed under Rule 23(f). Pamela Coukos and Nicole Austin represented the NAACP before the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit declined to accept the appeal at that time. After the lower court dismissed all of the individual claims on summary judgment, the case returned to the Eleventh Circuit for appeal on all issues, including class certification. Working with the Impact Fund, Pamela Coukos drafted an amicus brief filed on behalf of ten national civil rights and employment organizations, including the NAACP, MALDEF, NELA and the Lawyers' Committee, asking the appellate court to correct serious errors by the lower court, to vindicate important policies related to discrimination class actions and to clarify the law regarding certification of employment cases. The Court denied the civil rights organizations permission to file the brief, and ultimately affirmed the lower court's ruling on class certification.