There is this device known as a "writ of mandamus" by which a party to a lawsuit can seek to force a U.S. District Court to change a ruling.  It is an "extraordinary" write reserved for "drastic" situations.  That is judge-speak for saying a writ of mandamus applies only to situations which are not "fixable" by a normal appeal and in which a lower court judge is clearly wrong.  See, e.g., Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977).  So, when a defense lawyer sought mandamus in a situation not meeting these requirements, the Ninth Circuit took offense.  See In Re Nordstrom, Inc., No. 13-71163 (9th Cir. 6/17/13).  In this case, the Ninth Circuit issued an order regarding the employer’s writ of mandamus.  The Court found the petition for a write of mandamus to be "frivolous and wholly without merit."  It ordered the employer (represented by Littler Medelson P.C.) to explain within 21 days why monetary sanctions should not be imposed. 

The employer’s Petition for Writ of Mandamus sought relief because the lower court denied the employer’s motion for summary judgment.  In the employer’s view, the district court failed to construe a pertinent decision correctly and did not adequately weigh the possible inferences.  Regarding the need for immediate relief, the employer simply claimed that it would be exposed to class certification and possibly losing at trial.  In other words, if the employer did not seek this extraordinary relief, it might lose at trial and it might lose a motion for class certification.  The Ninth Circuit rightly finds this petition to be frivolous.  Class certification is not at all a "sure thing."  Many times, the employees lose a motion for class certification.  And, I know many of us have forgotten what it was like to try a case in federal court, but back when we still had trials, plaintiffs do lose sometimes.  So, being exposed to possible loss at trial comes nowhere near the extraordinary requirements for a writ of mandamus. 

More likely, the employer and their attorneys simply could not accept losing their motion for summary judgment.  Their attorneys might have even assured the employer of a strong likelihood of winning.  According to the employer’s Petition, the court expressed some ambivalence in its decision – not an unusual result in a close case.  But, in litigation, we are expected to accept a loss with some grace – even in a close case.  The Ninth Circuit was right to issue a warning to the employer.  It has unreasonably added to the litigation costs for all concerned.  

Some employees might file a weak appeal, but certainly, the incentive lies more with the employer.  The employer’s lawyer is generally paid by the hour and has some incentive to perform unnecessary work.  I am sure Nordstrom is not the first and will not be the last employer to file a frivolous appeal.