The Seventh Circuit and the Removal of Unpublished Opinions from Legal Limbo

Class action plaintiffs began working with Cellular Sales (Cellular), which sells Verizon wireless services, in 2010.  Cellular required that they form a business entity like an LLC and that they sign a sales agreement that identified them as independent contractors.  The sales agreements did not contain arbitration clauses.  In 2011, the plaintiffs became employees of Cellular and signed new compensation agreements that did contain arbitration clauses.  When plaintiffs brought claims that, before the compensation agreements entered into force, they were misclassified as independent contractors when they were really employees, Cellular sought to compel arbitration.  The District Court denied that motion.  

In Holick v. Cellular Sales of New York, the Seventh Circuit affirmed.  Although the Court acknowledged that an arbitration clause can apply retroactively, it cannot do so when the cause of action arises under a contract that does not contain an arbitration clause.  In construing arbitration clauses, courts must give effect to the parties’ intentions, and the Seventh Circuit saw no evidence that the parties intended to arbitrate disputes arising pursuant to their sales agreements.

Not so small aside: in its opinion the Seventh Circuit notes that plaintiffs relied heavily on an unpublished Fourth Circuit opinion.  I found this curious and so I dug a bit.  According to the Illinois Bar Journal the Seventh Circuit changed its rules relating to unpublished opinions in 2006. It is now permissible to cite to unpublished opinions issued on or after January 1, 2007.  Citation to unpublished opinions issued prior to 2007 is still prohibited.  Well, this is progress.  As my colleague, David Cleveland has argued in numerous articles, unpublished opinions are a bad idea, and allowing parties to cite to them goes a long way towards eliminating the dangers of the designation.  

But why draw the line at 2007?  When I was in college, I saw a play called Sister Mary Ignatius Explains It All to You.  I have no idea what compelled me to see that play and even less idea why I remember this one joke, but here it is: Sister Mary Ignatius explains that before Vatican II, unbaptized babies were consigned to limbo.  After Vatican II, they are allowed to enter heaven.  Sister Mary Ignatius is asked what becomes of the pre-Vatican II babies that were in Limbo.  She pauses.  “They are still in limbo.”  Maybe it was the delivery, but I still love that line, and remember it 30 years later.  Yup, the rest of my college years are a blur.

Interestingly enough, I read on Slate that in 2007, the Vatican investigated the concept of limbo and either eliminated it entirely or at least determined that unbaptized babies do not end up there.  The articles I read suggest that limbo was just for unbaptized babies, but I thought the virtuous pagans (like Virgil pictured right) were there as well (discussing prosody I am told).  In any case, 2007.  The very same year that unpublished opinions emerged from limbo! Coincidence?