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Gardere has a national and international energy practice formed around our Energy Industry Team, which is a multidisciplinary group of approximately 60 attorneys with diverse backgrounds, experience and skills specific to the energy industry. Our team includes attorneys who have served as in-house counsel for major energy companies, providing a depth of insight into our clients' needs, issues and concerns. We understand and regularly practice in virtually every sector of the energy, and we represent a wide variety of industry participants from multinational corporations to individuals.
From our offices in the United States and Mexico, our International Practice helps clients operate in today’s global economy. We have more than 30 professionals operating as a boutique within an Am Law 200 law firm and are able to provide focused service with the resources of a large firm. We understand that clients who are engaged in the global marketplace need lawyers who can operate seamlessly across multiple jurisdictions. Our international experts are multi-lingual, are culturally fluent and intimately familiar with various legal systems across the world, especially those in Latin America. Whether you need help with commercial transactions, regulatory matters, customs and import regulations, immigration matters, M&A and joint ventures, international disputes, or international tax planning, Gardere’s international team is here to assist you.
We represent domestic and foreign private funds in all aspects of fund formation, fund operations, platform and add-on acquisitions, and portfolio company operations. Our team has a reputation for being the go-to-lawyers for private equity funds, hedge funds, venture capital funds and family offices. We are known for our vast deal experience, the efficient way we staff and manage our work, and the way we maintain our relationships. We get deals done with sophisticated, strategic, and practical advice tailored to the needs of our clients.
*Not admitted to practice law.
After months of anticipation, the United States Supreme Court today issued its opinion in the Nat'l Lab. Relations Bd. v. Noel Canning case. No. 12-1281, slip op. at 1 (June. 26, 2014). By way of background, on January 2, 2012, President Obama made three appointments to the National Labor Relations Board while the Senate "was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by 'pro forma session[s],' with 'no business . . . transacted,' every Tuesday and Friday through January 20, 2012." Id. at 2. In a unanimous decision, the Court found that President Obama exceeded his authority by making these appointments. Id.
Cutting to the chase, what does this mean for employers? This decision calls into question the validity of the decisions from the National Labor Relations Board since the January 2, 2012 recess appointments. The new five member Board, including four members recently approved by the Senate, will likely be called upon to revisit many of those decisions.
Why did the Court reach this conclusion? The Court was tasked, for the first time, with interpreting the Recess Appointments Clause. See id. at 4, 9. The Clause is a constitutional provision that allows the President to temporarily appoint certain officers during a Senate recess. Id. at 6. But as the Court noted, the Clause does not offer "the President the authority routinely to avoid the need for Senate confirmation." Id. And while the Court was reticent to upset a long history of Presidential recess appointments, id. at 9, the Court found the Senate is in session when it says it is, id. at 36, unless, under its own rules, it lacks the "capacity" to act, id. at 35 (emphasis in original).
With that in mind, the Court found "that the pro forma sessions [between December of 2011 and January of 2012] were sessions for purposes of the Clause." Id. at 36. In doing so, it observed that the "Recess Appointments Clause is not designed to overcome serious institutional friction," and instead merely "provides a subsidiary method for appointing officials when the Senate is away during a recess." Id. at 40. On the other hand, the Court held that the Clause "empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length[,]" id., but "a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause," id. at 21.
The majority opinion was delivered by Justice Stephen Breyer and joined by Justices Anthony Kenney, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and the concurring opinion was written by Justice Antonin Scalia and joined by Chief Justice John Roberts and Justices Clarence Thomas, and Samuel Alito.
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