July 16, 2018

Kavanaugh ruled in favor of Trump Plaza Hotel and Casino to bust union of card dealers

Top priority for those seeking to derail, or at least damage, the Kavanaugh confirmation process. You can get the word out without citing this tip-off post -- just say you were investigating any connection that Trump had with Kavanaugh, and discovered what was public record.

This case allows a way to attack the nominee for his record of union-busting, and specifically favoring a Trump company in doing so. Since nobody cares about social-cultural issues in this climate of populist re-alignment, the opposition to Chamber of Commerce puppet Kavanaugh must be populist, not socially liberalist.

While searching for Kavanaugh's opinions on immigration for the DC Circuit Court of Appeals, I stumbled upon a case that turned out to have nothing to do with immigration, despite containing the search term "immigrants", but which is noteworthy for who one of the parties was -- Trump Plaza Hotel and Casino, one of Trump's two Atlantic City fiascos.

Citation: Trump Plaza Associates v. NLRB, 679 F.3d 822 (D.C. Cir. 2012).

Full text here.

Although his colleague Henderson wrote up the opinion, Kavanaugh joined the rest of the three-person panel in deciding in favor of Trump Plaza Associates, who were petitioning to void a highly successful union election among the card dealers in 2007, which the National Labor Relations Board had upheld.

The Circuit Court did tell the NLRB to re-consider their legal reasoning for their approval of the election, rather than say flat-out that it was so obvious to the Circuit Court that the election process was compromised, that the NLRB shouldn't even bother trying to re-approve the election with a different argument.

Still, the Circuit Court could have simply said they concur with the NLRB's approval of the election, though not with their argument for the approval, so let it be known that the higher court's narrower or more precedent-focused reasoning for approving the union election will be the standard.

But the Circuit Court did not really approve of the election, and wanted some rationalization for shooting it down, despite the complaints from the company being totally specious. Typical of courts in the post-New Deal era, they defer way more toward management than to the NLRB.

Vacating the NLRB's approval of the election set the process back by years, and that would be all that was necessary to kill the union drive for good, since Trump Plaza Hotel and Casino closed in 2014, just two years after the Circuit Court's decision. Even by 2013, Trump Plaza Associates announced they wanted to sell the property to another casino company, jeopardizing the union drive while the property's future ownership was up in the air.

This case presents not only the usual opportunities for pro-labor politicians to hammer a conservative judge for granting the most flimsy legal appeal by corporations trying to block a union drive, as long as it serves the larger agenda to further dismantle the New Deal and weaken labor regulations.

This time, though, there's a unique opportunity to muddy the waters with a "conflict of interest" narrative. Kavanaugh helped a Trump company refuse to negotiate a contract with an elected labor union, scoring a legal and financial victory for the billionaire. Now that this billionaire occupies the White House and is able to elevate judges, he picks for the Supreme Court the very one who helped him out big-league just six years earlier.

It's obviously not a quid pro quo, since nobody including Trump thought he'd be president back in 2012. But it still looks corrupt, to pick -- of all the judges out there -- the one who's recently done great legal and financial things for you personally.

Best case, Kavanaugh gets blocked, and the assault on anti-union judges means his replacement has to be at least moderate on labor issues, rather than a full Koch Brothers shill for big business.

Worst case, Kavanaugh gets his seat on the highest court, but he gets tainted, and so does Trump, for the process appearing so personally motivated rather than merely politically motivated. It makes the selection of justices appear even seedier than already believed, after the GOP cockblocked Obama from getting to nominate Scalia's replacement.

That level of blocking only happened in the lead-up to the Civil War, and when the shoe was on the other foot after the Lincoln coalition dethroned the Jackson coalition, the new dominant party packed the court -- increasing or decreasing the number of justices depending on which party would be doing the nominating, and adjusting the boundaries of the circuits to minimize the regions controlled by their rival party.

The more appalling the selection process during this peak of partisan polarization, the more the new dominant coalition under Bernie will be able to adjust the make-up of the Supreme Court in order to get their programs through, against old-guard Reaganite obstruction.


  1. This might be what McConnell meant by Kavanaugh having a tougher confirmation, and preferring Kethledge or Hardiman instead. Seems like the entire GOPe and their media organs were united in that assessment.

    Fools thought it meant Kavanaugh must therefore be some hardcore populist-nationalist -- he is not. Read the opinions. I'll post on that later. A Bushie is not anti-Establishment.

    But Trump ignored the unison of calls to pick either of the other two Koch puppets, since he prizes personal loyalty over almost everything else. It has nothing to do with the Mueller probe, and Kavanaugh thinking sitting presidents can't be indicted.

    It has to do with Kavanaugh already having gone to bat for Trump's legal and financial interests as a union-busting billionaire -- personally, not just in general on behalf of billionaires as a class. And on the flimsiest of legal arguments, no less.

  2. If Democrats were smart the Aetna-Cigna merger would be an even better basis to nail Kavanaugh on. Long story short, Aetna and Cigna were trying to merge and had been blocked from doing so by a lower court. They appealed to the D.C. Court of Appeals and the case was heard by a panel of three judges including Kavanaugh. The majority ruled against the merger for a number of reasons and Kavanaugh dissented. And in the majority opinion, several pages are spent ripping Kavanaugh's dissent to shreds (http://sourceonhealthcare.org/wp-content/uploads/2017/04/US-v.-Anthem-Appeal-Opinion.pdf). For example:

    * "The dissent baldly asserts that the efficiencies “are
    merger-specific bydefinition,” Dis. Op. 6–7, without addressing
    the paucity of evidence that Anthem would be unable to develop
    a Cigna-like product without merging. So too, it baldly asserts
    that the savings were “sufficiently verified,” while admitting
    that it is not clear “just how much the employers would benefit
    from this merger”. In other words, Anthem estimated an astronomical amount of savings, so even if that amount were wildly overstated, the dissent expects the court to trust that, as an unknown fraction of a large number, the result “would be large.”

    * "To the extent the dissent notes any of the major factual
    problems with Anthem’s depiction of the merger, it brushes
    them aside. It dismisses as “highly speculative” the provider
    abrasion problem that was conceded by both Anthem and Cigna
    witnesses, Dis. Op. 17, a problem that undermines Anthem’s
    plans for realizing the savings through the affiliate clause and
    renegotiation. It characterizes record evidence that squarely
    contradicts Anthem’s pass-through estimates — Anthem’s own
    internal PowerPoint presentation — as “secret Anthem plans to
    dramatically raise [its] fees,”, which is precisely what the
    evidence reflects. [...] Again, pulling at any one loose
    thread quickly unravels Anthem’s narrative, but the dissent is
    simply unwilling to do so."

    Given the recent ruling by the Supreme Court Ohio v. American Express, which really makes anti-trust a lot harder to actually enforce, if Senate Democrats don't bring up either the Trump case or the Aetna-Cigna merger, they absolutely deserve to watch Kavanaugh get put on the bench.

  3. BuzzFeed mentioned the case at the very end of a post from a week ago that was mostly about distractions like social-cultural issues and the Mueller probe. Only one sentence:

    "In 2012, Kavanaugh was on a three-judge panel that ruled for the Trump Plaza Hotel and Casino in Atlantic City in a labor dispute."


    Looks like the liberal airheads are too obsessed with the mandatory ritual panic about Reaganite appointees overturning Roe v. Wade, despite their long track record of upholding it and striking down the extreme measures that states have taken to limit access.

    Some are preparing to ask about the judge's thoughts on pre-existing conditions for health insurance. That's about as populist as they're going to get.

    They won't grill him on the healthcare cartel mega-merger, because they favor that in general.

    Even if a few of the good ones did grill him on it -- so what? Would he, Trump, and the whole selection process receive a stigma as a result? Not if it weren't a team effort.

    The personal conflict of interest is such a rare opportunity to claim a scalp against the Federalist Society / Koch Brothers. The cons would get another one, but the scalp would at least give the Dems' constituents something to turn out for, put the taste of blood in their mouths, and lay the groundwork for the new nuclear option when the Bernie coalition takes over and the Reaganite SCOTUS tries to obstruct -- mess with the numbers and circuit boundaries until they're neutralized.

  4. Trump lost control of his Atlantic City casinos back in 2004 when Trump Casino Holdings, Atlantic City went bankrupt. The firm re-emerged from bankruptcy as Trump Entertainment Resorts (which went bankrupt in 2009) and cost Trump all his shares.

  5. The companies kept going in and out of bankruptcy, and Trump's role in their operation and how he benefited from them is not always clear each step of the way.

    Plus a big chunk of Trump's net worth comes from the value of his brand, and whether or not he owned shares in Trump Plaza Hotel and Casino, that's his name and brand at stake.

    In fact, when the property was winding down, he sued them to take off his name, so his brand wouldn't be contaminated by a failing property.

  6. When the corporation emerged out of Bankruptcy in 2009 as Trump Entertainment Resorts the bondholders took 100% ownership of the firm, all previous shareholders lost 100% of their equity. Trump had no role in the firm after 2009 and owned zero shares of the firm.

    He had already lost 70% of his shares in 2004 when Trump Hotels & Casino Resorts Inc. went Bankrupt and the new owners removed him as CEO, but he did retain an ownership stake of 20% until the BK in 2009 which destroyed his equity stake, as all share holders lost all their investment when shares went to 0 in 2009. I recall this because my firm worked on the re-org in 2004. I was surprised they kept the Trump name when they emerged from BK in 2004 and Trump had relinquish his chief executive title and would not be part of the management team after 2004.

  7. That still leaves the biggest stake he had in it -- his brand value. Anything with the Trump name is licensing his brand from him, whether he owns any equity in the licensee's business or not.

    That's become more and more what drives his net worth over time -- licensing his brand, not ownership or operation of properties themselves. That's why he sued Trump Plaza Hotel and Casino toward the end, for them to drop his name -- TPHC was a symbol of the failed Atlantic City project, and it was going to weigh down his brand value if such a toxic association continued to exist.

  8. True...and the casinos did pay him millions in 2009 so they could keep using his name


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