Penn Law clinic preps case for Supreme Court

It is the opportunity of a lifetime — the chance to help prepare a case that will go before the Supreme Court. For the students on Penn Law School professor Stephanos Bibas' full-year Supreme Court Clinic team, that opportunity has become a reality. 

Currently, the Supreme Court Clinic is representing several Mercedes-Benz dealership workers arguing for overtime. Last year, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the five service advisors at Mercedes-Benz, ruling that the workers were entitled to overtime.

Previously, Mercedes-Benz had treated the service advisors as salesmen and mechanics, who do not qualify for overtime. Despite working 11-hour days at times — nearly 55 hours a week — the workers were not considered eligible.

Because the Ninth Circuit disagreed with what other appellate courts had decided, the case proved ripe for review by the Supreme Court, Bibas said. 

Since 2009, the Supreme Court Clinic has provided students at Penn Law and other elite law schools with the opportunity to assist parties to real Supreme Court cases by preparing research, writing briefs, attending oral arguments and participating in moot court rehearsals.

Bibas, a leading criminal procedure scholar and former law clerk to Justice Anthony Kennedy, leads the clinic. 

“Employees can’t generally afford to hire experienced Supreme Court counsel,” Bibas added. “We offered our services to help oppose certiorari," referring to the process by which the Supreme Court decides to take up a case. 

The students spent the fall writing an opposition to certiorari, but the Supreme Court took the case.

“They’re going to be hearing arguments in late April,” Bibas said. “So the students are spending all spring researching and writing a brief on behalf of the five service advisors.”

According to the Department of Labor, the Fair Labor Standards Act guarantees workers overtime pay. 

“Unless exempt, employees covered by the act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay,” the Department of Labor’s website said.

“There’s one provision from this act that exempts salesmen, partsmen and mechanics,” Bibas said. “It’s clear that auto salesmen at dealerships just don’t get overtime. It’s clear that mechanics and partsmen at dealerships don’t.” However, as Bibas explained, service advisors are still selling a service.

“The service advisor is not selling cars, everyone agrees. He’s not a mechanic servicing cars, but they try to shoehorn him in as a salesman selling the service because he writes up an estimate and passes the car on to the mechanic, even though he doesn’t service the car himself,” Bibas said.

The clinic is a full-year course taught by Bibas, James A. Feldman, Stephen Kinnaird and Nancy Bregstein Gordon. Most students apply to be part of the clinic before their third year.

Third-year law student Andrew Cherry applied to the clinic after previously taking a class with Bibas. 

“I wanted to work with him and continue working with him,” Cherry said. “You get a chance to see what really good legal writing looks like.”

Cherry noted that in a previous criminal procedure class, one of the cases cited in the textbook was Penn’s Supreme Court Clinic’s first case. “It became well known enough that it was in our textbook, which I thought was really cool,” Cherry added.

Once accepted, the students monitor cases in the lower courts and identify which cases are most likely to be taken up by the Supreme Court. The students then send these cases to the professors who decide whether or not to take the case and whether or not to reach out to a party to the case.

The Supreme Court Clinic works on two to three cases at a given time. Grouped in teams of four to six members, the students work on all aspects of the case. This year, the Supreme Court Clinic succeeded in opposing certiorari in one case but not in the overtime case.

“We do the research. We actually get to write the first couple drafts of our sections and bring them to class, and then everyone critiques them,” Cherry said. “Only after we’ve drafted each of our sections a couple of times does the professor come in and redraft it and put everything together.”

“They give us a chance to do all the initial research and the initial writing, and then [the professors] kind of corral all of our work and turn it into one well-written entire brief,” Cherry added.

Cherry added that the clinic has “already made [him] a much better writer” and that he learned to write more strongly and concisely. 

He added, “I think [the professors] really like the fact that there’s so many eyes looking at it, and we can think of all of the little things when they’re really focused on the big picture."

The clinic's work will continue throughout the spring. 

“We’re going to get the other side’s brief in on Monday, and then we’re going to have a month of further revisions in additional research before we file our brief on March 30,” Bibas said. Students will then weigh the benefits of certain answers over others and participate in moot court, where they will challenge Bibas to prepare his responses.

“Then they’ll actually come to the Supreme Court and watch the actual argument,” Bibas said. “They’re really involved in everything. I couldn’t do it without them.”

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