By: Ashley Laken, Esq.

Seyfarth Synopsis: The plaintiffs in the first lawsuit challenging the Final Persuader Rule have filed a motion for preliminary injunction, and the U.S. Chamber of Commerce seeks to file an amicus brief in support of that motion.

In follow-up to our earlier blog post about the first lawsuit to challenge the U.S. Department of Labor’s Final Persuader Rule, Associated Builders and Contractors of Arkansas v. Perez (Case No. 4:16-cv-169, U.S. District Court for the Eastern District of Arkansas), the plaintiffs in that lawsuit have filed a motion for preliminary injunction and for an expedited hearing on the motion, and the U.S. Chamber of Commerce has filed a motion seeking leave to file an amicus brief in support of the plaintiffs’ motion.

In their motion, the plaintiffs argue that absent injunctive relief, the challenged Rule, which is otherwise scheduled to take effect on April 25, 2016, will cause a radical change in the well-settled application of the Labor-Management Reporting and Disclosure Act’s advice exemption that would irreparably harm the plaintiffs’ First and Fifth Amendment Rights. The plaintiffs also argue that an order for injunctive relief will simply preserve the status quo and temporarily retain the same interpretation of the advice exemption that has been in effect for more than 50 years, and therefore, the DOL will not be harmed by a preliminary injunction.

In the proposed amicus brief, the Chamber argues that the Rule will chill the free exchange of ideas between employers and employees and will impose substantial compliance costs as employers and their attorneys are forced to grapple with DOL’s incoherent new guidelines. The Chamber explains that of greatest concern is the fact that the DOL’s new interpretation of the LMRDA’s advice exemption—if allowed to take effect— threatens to expose thousands of companies, law firms and lawyers to potential criminal liability for failure to abide by an exceedingly vague interpretation of the LMRDA.  The Chamber also explains that the Rule “adopts an unworkably vague standard and imposes severe burdens on attorney-client confidences.”

It is unclear when any hearing on the motion for preliminary injunction will or could be, but we will keep you apprised of further developments as they occur.