A large crowd rallies on the steps of the U.S. Supreme Court, led by top Democrat lawmakers, to denounce President Donald Trump’s executive order banning immigration from 7 Muslim-majority countries, on January 30, 2017. (Photo: Diego M. Radzinschi/ALM)
More than 120 companies signed friend-of-the-court briefs in the U.S. Court of Appeals for the Ninth Circuit in opposition to President Donald Trump’s executive order banning travel from six predominantly Muslim countries last month.
The first travel ban was shot down by the court, and rather than seek an appeal, the Trump administration drafted a new one, outlining similar restrictions as before. The state of Hawaii challenged the new executive order on March 8, and, like before, a multitude of technology companies signed on opposing it. On Wednesday, a federal judge in Hawaii also issued a temporary restraining order for the revised travel ban.
Businesses have filed amicus briefs in many contentious social issues in recent history. In March, more than 50 companies filed an amicus brief with the Supreme Court in support of a transgender teen’s sex discrimination claim. And the marriage equality debate in 2014 brought hundreds of company signatures and one coordinated brief by 30 major corporations. According to a review for The National Law Journal, the growing quantity of amicus curiae have become the norm.
But how do companies decide whether to file these amicus curiae court briefs?
General counsel say anyone can pitch the idea to company leadership. In-house counsel, government relations directors, and, even the chief executive can all propose filing or signing an amicus brief. Filing or signing a brief can represent a company’s self-interest, in protecting its business and its employees, and it can signal support of company mission statements, GCs say. For example, some legislation may directly cut a company’s workforce, leaving an employer short-handed.
Briefs are written by either in-house counsel or outside law firms, GCs say.
In-house counsel review the brief, consult with the chief executive officer, determine if the language matches the company’s values and intentions, and within a matter of days, a brief can be signed. Sometimes a press team is looped in, sometimes not.
Abigail Horrigan, general counsel at New York-based services company Managed by Q—which signed the amicus brief opposed to the travel ban—said she and chief executive officer Dan Teran closely watch legislation that could harm company employees, including the potential repeal of the Affordable Care Act and anything that could affect paid family leave. The company offers cleaning, moving, furniture assembly and health and wellness services for businesses through an internet platform.
“The immigration ban has been especially troubling; indeed, after the first ban was instituted, I worked at JFK to help folks affected,” Horrigan said in an email. “We were proud to sign our name on that brief and to stand up against such an unfair law.”
Horrigan said she, as general counsel typically makes the decisions on these matters. She consults with Teran, reviews the amicus brief, makes sure it aligns with company values and then signs on.
“The timeline for these things is extremely short, usually only a few days, so you have to make the brief review process a top priority,” Horrigan said.
A company can decide to file an amicus brief even if they do not have an in-house counsel.
“We don’t have a general counsel, so it’s me, in consultation with the executive team, making these decisions,” said Zachary Sims, chief executive officer of San Francisco-based Codeacademy, an online education platform that provides coding classes. The company signed in support of the Hawaii state attorney general’s lawsuit challenging the President’s revised travel ban. “This is something that we stand for as an organization.”
Manuel Alvarez, general counsel at Affirm Inc., an online lender, said he and company CEO Max Levchin made the decision to file a friend of the court-briefs in the travel bans over one weekend.
“We were both on separate email threads about the amicus brief, and we both synced up on a Sunday and realized we were part of separate threads talking about the same thing,” Alvarez said. Alvarez and Levchin saw that more than 100 companies had signed on, and they asked themselves if they should join, Alvarez said. They did.
“The amicus brief essentially argued that immigration really fuels American technology and innovation, and that’s a fundamental concept that our CEO and Affirm, as a company, believe in.” Alvarez said.
Levchin is an immigrant from Ukraine, he said, and that many Affirm employees, some on work visas, grew worried about President Trump’s first executive order signed in late January.
In signing any amicus brief, the company weighs the downsides, Alvarez said. Companies sometimes worry that, by publicly supporting one side of an argument, a company makes itself visible to people who disagree.
“The downside is that you could be identified by the opponents in that conversation and singled out and attacked somehow,” Alvarez said. “How exactly, who knows, but that’s the fear.”
Alvarez said he and the CEO looked at the number of companies signing onto the brief and saw little threat of retaliation. He said some companies, depending on their profile and industry, will have to decide if showing support for one cause could alienate customers or slow sales. In this case, Alvarez said, the company chose its core values, one of which is “People come first,” which includes employees. If employees are harmed, Affirm will support them, Alvarez said.
“There will be times that our customers disagree with our core values and we will have to evaluate and deal with those consequences if and when they arise,” Alvarez said. “But, we as a company believe that it’s more important our actions align to our core values.”