http://blogs.law.harvard.edu/corpgov/2008/05/01/apache-corporation-v-nycers-injunction-denied/ Sponsored by the HLS Corporate Governance Program Tue, 07 Oct 2008 22:18:28 +0000 http://wordpress.org/?v=2.5.1 http://blogs.law.harvard.edu/corpgov/2008/05/01/apache-corporation-v-nycers-injunction-denied/#comment-19064 Con Hitchcock Fri, 02 May 2008 20:07:14 +0000 http://blogs.law.harvard.edu/corpgov/2008/05/01/apache-corporation-v-nycers-injunctio#comment-19064 I imagine that folks on both sides will want to spin this decision as they see fit, but it's not much of a departure. First, the court followed existing precedent that no-action decisions are not entitled to Chevron deference, but under Skidmore and Mead Corp. are entitled to consideration depending on how persuasive they are. No headlines there. Second, the proposal covers more ground than did the original 1991 Cracker Barrel proposal, which asked the company to add sexual orientation to the company's anti-discrimination policy. The proposal here goes beyond discriminatory hiring practices (which constitute a policy issue for purposes of the "ordinary business" exclusion) and tries to regulate advertising, marketing, corporate contributions, etc. The 1998 Release on this subject identified micro-management as a concern in this area. There are few enough cases in this area, so it's useful to know what's out there, but I don't see this one as much of a trailblazer one way or the other. I imagine that folks on both sides will want to spin this decision as they see fit, but it’s not much of a departure.
First, the court followed existing precedent that no-action decisions are not entitled to Chevron deference, but under Skidmore and Mead Corp. are entitled to consideration depending on how persuasive they are. No headlines there.
Second, the proposal covers more ground than did the original 1991 Cracker Barrel proposal, which asked the company to add sexual orientation to the company’s anti-discrimination policy. The proposal here goes beyond discriminatory hiring practices (which constitute a policy issue for purposes of the “ordinary business” exclusion) and tries to regulate advertising, marketing, corporate contributions, etc. The 1998 Release on this subject identified micro-management as a concern in this area.
There are few enough cases in this area, so it’s useful to know what’s out there, but I don’t see this one as much of a trailblazer one way or the other.

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