Amazon Logistics, Inc. v. Virginia Employment Commission

Rule 5:27(d)

Approbate-Reprobate Doctrine

Ends-of-Justice Exception

Procedural Notes

Policy Notes

Holding

• Amazon waived its arguments in its appeal to the Supreme Court of Virginia under Rule 5:27 and the approbate-reprobate doctrine; the ends-of-justice section does not apply

  
  

Rule 5:27(d)

• Rule 5:27(d) the appellant's opening brief must contain the standard of review, the argument, and the authorities relating to each assignment of error

• if a brief assigns error on one ground, but then fails to specifically argue those grounds in the body of the brief, the Supreme Court of Virginia considers the issue waived as an inadequately developed argument supporting an assignment of error (colloquially called a bad-brief waiver) in violation of Rule 5:37(d)

• Amazon loses because it failed to brief sufficiency-of-the-evidence grounds to challenge a class-wide ruling on the classification of its drivers

• As the party carrying the burden of proof to assert sufficiency of the evidence, it could not have made the sufficiency argument anyways

Approbate-Reprobate Doctrine

• a litigant cannot approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory, or else such arguments are waived

• Amazon also loses because it argued against its original legal strategy employed in lower judicial bodies

  • throughout the life of the case, Amazon asked for a class-wide ruling on the classification of its drivers and asserted that the evidence was sufficient to make such a ruling under state statute

  • Amazon cannot make an about-face on appeal seeking reversal of the lower-court decision on the ground that the evidence is insufficient to support a class-wide ruling

Ends-of-Justice Exception

• an appellate court may consider a matter not preserved by objection in the trial court to prevent a grave injustice or the denial of essential rights

• the exception cannot apply to Amazon because the exception applies where an issue is unpreserved due to failure to raise an objection, not where an appellant waives the issue through approbation and reprobation or inadequate briefing

Procedural Notes

• "procedural default and associated principles, such as the approbate-reprobate doctrine, exist to protect basic notions of fair play in our adversarial system"

  
  

Policy Notes

• "we are aware of the transforming 'gig economy' and the economic impacts produced by these changes, which compels us to point out that this order has a narrow application beyond this specific case [...] nothing prevents any future putative employer from pursuing a case based on a change in the law or different substantive terms of an employment agreement, either or which may lead to a different result"