Good morning. Those Big Law return-to-office plans are getting muddier with the Delta variant’s surge, with some firms like Shook Hardy and Weil Gotshal now re-instating mask requirements. Mass tort nerds have reason to get excited today with the Judicial Panel on Multidistrict Litigation back in action. And a new survey found that SCOTUS' approval has hit a four-year low. Let’s get cruising!
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Big Law re-thinks return-to-office plans amid Delta surge
Law firms are rethinking some of their return-to-office plans amid the rise of the contagious Delta coronavirus variant, with some weighing vaccination rules and re-instituting mask requirements.
Many major law firms set September return dates for lawyers and staff. Now those plans are being re-examined. "We are actively considering our reopening plans in light of the new guidance and surges in various locations," Paul Schmidt, BakerHostetler's chairman, told The Daily Docket.
After the CDC on Tuesday recommended that vaccinated people wear masks indoors in some areas, 500-lawyer Shook, Hardy & Bacon decided it would reinstate its own masking requirement for its offices, said chair Madeleine McDonough. So too did 1,100-attorney Weil Gotshal for most of its U.S. offices. The employment plaintiffs' law firm Sanford Heisler Sharp reinstated masks--even after it mandated vaccines for the 100 lawyers and employees who work in the firm's offices.
"Our first priority is the safety and well-being of our people," said David Sanford, Sanford Heisler's chairman. His firm had been one of the few industry-wide that required vaccines. That may be changing too. For example, New York-based Paul Weiss last week informed its employees they would need to be vaccinated to enter its buildings.
Arriana McLymore reports that with the White House preparing to announce today that federal agencies will require vaccinations or testing, the New York State Bar Association on Wednesday launched an emergency task force on mandatory jabs. "It is time to consider all possible options," said NYSBA President T. Andrew Brown. See why he says the nation is at a "dangerous tipping point."
Industry buzz
- President Joe Biden is getting a chance to pick a second judge for the patent-centric Federal Circuit. U.S. Circuit Judge Kathleen O'Malley, who was appointed by then-President Barack Obama in 2010, will retire next March. (Reuters)
- Virginia state solicitor general Toby Heytens appeared likely to gain some GOP support for his nomination by Biden to the 4th Circuit based on his U.S. Senate Judiciary Committee confirmation hearing on Wednesday. U.S. Senator Chuck Grassley of Iowa, the committee’s ranking Republican, said that he wouldn’t agree with every ruling Heytens might write, but that he believed "he could serve as a moderating force" on the appellate bench. (Reuters)
- Arent Fox signed a $1.2 million contract to provide legal and lobbying services in the U.S. for a Ukrainian oil and gas industry association that bills itself as the largest advocate for the sector in the eastern European nation, according to new disclosure records filed with the DOJ under the Foreign Agents Registration Act. (Reuters)
- Turns out it doesn’t matter if you’re a Democrat or a Republican when it comes to disapproving of SCOTUS these days. For the first time since 2017, approval of the U.S. Supreme Court fell below 50% in a Gallup poll to 49%, with poll takers from both parties evenly split on their views of the justices. (USA Today)
- The U.S. Senate confirmed Levy Ratner partner Gwynne Wilcox and SEIU general counsel David Prouty to seats on the National Labor Relations Board. With the Senate votes, Wilcox became the first Black woman on the NLRB, and Democrats took the majority on the five-member board. (Reuters)
- In contrast to the statements from Morgan Stanley’s chief legal officer about wanting to see the company’s outside attorneys back in their offices, the general counsel of German chemical company BASF, Matt Lepore, says he views work flexibility as a diversity issue. "I trust you to make this call not only in the best interests of BASF, but also in the best interests of the lawyers working for BASF," he said in a letter to the company’s outside counsel. (Law.com)
Source: Cornerstone Research, Stanford Law School
That's the number of new securities class action lawsuits filed in federal and state courts in the first half of 2021, according to a new report by Cornerstone Research and the Stanford Law School Securities Class Action Clearinghouse. The filings marked the lowest number tracked by the researchers since the first half of 2015. The cause of the drop? A 66% decline in lawsuits challenging disclosures by companies in connection with mergers and acquisitions compared to the second half of 2020. But don't fret, the securities plaintiffs' bar is finding ways to get new cases. As Alison Frankel has reported, federal lawsuits related to blank-check companies, or SPACs, are on the rise. The report found SPAC-related cases doubled in the first half of 2021 to 14.
Coming up today
- The Judicial Panel on Multidistrict Litigation will meet in Boston to hear arguments over whether to consolidate several disputes into new MDLs. Among the cases under consideration are lawsuits accusing Google of employing anticompetitive practices in advertising-technology related markets; cases alleging that Eisai Inc's weight-loss drug Belviq can cause cancer; and claims that Novartis' leukemia drug Tasigna causes heart disease.
- Lawyers representing people who say they developed cancer as a result of using Johnson & Johnson's baby powder will urge U.S. Bankruptcy Judge Laurie Silverstein in Wilmington, Delaware, to issue a temporary restraining order to prevent it from pursuing bankruptcy for its talc-related liabilities. The request was filed in connection with the Chapter 11 case of J&J's talc supplier, Imerys Talc America. It came as a subcommittee of the U.S. House Committee on Oversight and Reform sent a letter to J&J seeking documents related to plans to put its talc liabilities into bankruptcy. J&J in the past said it has not determined a course of action regarding the baby powder litigation other than to continue to defend the safety of talc. Learn more.
- Former Goldman Sachs analyst Damilare Sonoiki is slated to be sentenced by U.S. District Judge Gene Pratter in Philadelphia after admitting that he engaged in an insider trading scheme by leaking non-public information about pending deals to NFL football player Mychal Kendricks in exchange for cash and tickets to games. Kendricks was sentenced last week to one day of prison, probation and a $100,000 fine. Public defender Mark Wilson is representing Sonoiki.
- The Boy Scouts of America will go before U.S. Bankruptcy Judge Laurie Selber Silverstein in Wilmington, Delaware, for a preliminary hearing on a proposed settlement with representatives of around 60,000 men who brought sexual abuse claims against the youth organization. Insurers represented by lawyers at O’Melveny & Myers, WilmerHale and Gibson Dunn remain opposed to the deal. Jessica Lauria of White & Case is BSA’s lead counsel.
- Purdue Pharma will seek to overcome the objections of the DOJ's bankruptcy watchdog and secure the approval of U.S. Bankruptcy Judge Robert Drain in White Plains, New York, to award employee bonuses. The OxyContin maker wants to pay up to $5.4 million in bonuses to five top executives if they meet certain performance goals and up to $16.1 million to another 506 employees. Purdue, represented by Marshall Huebner of Davis Polk, is expected next month to seek approval of a reorganization plan, which could resolve thousands of opioid lawsuits. The plan would potentially shield members of the wealthy Sackler family that own Purdue from future liability, prompting a Congressional panel on Wednesday to question if bankruptcy laws need to be amended. Learn more.
- Speaking of litigation over the drug crisis, U.S. District Judge Charles Breyer in San Francisco will hold the first hearing in newly-constituted multidistrict litigation involving claims by cities and counties that accuse the consulting firm McKinsey & Co of fueling the opioid epidemic through its work advising Purdue and other drug manufacturers. The 48 lawsuits consolidated before the judge were filed after McKinsey agreed to pay $641 million to resolve claims by state attorneys general. Defense lawyers led by James Bernard of Stroock & Stroock & Lavan in a pre-hearing filing argue that any claims by the states’ political subdivisions were resolved in that settlement.
- The 1st Circuit in Boston will consider whether to revive a proposed class action accusing software company Carbonite of misleading investors about the capabilities and functionality of a data-backup product that it ultimately withdrew from the market in 2019. Andrew Love of Robbins Geller will argue for the lead plaintiff, the Construction Industry and Laborers’ Joint Pension Trust, and will face defense lawyer Alisha Nanda of Skadden.
- Health system ProMedica Health will urge the 6th Circuit in Cincinnati to overturn an injunction blocking its health insurance subsidiary from dropping Toledo, Ohio's St. Luke's Hospital from its network after the FTC forced ProMedica to unwind its purchase of the hospital. U.S. District Judge Jack Zouhary had concluded that terminating the hospital’s in-network status would violate antitrust law. Douglas Litvack of Davis Wright Tremaine and David Ettinger of Honigman will argue for ProMedica and St. Luke’s, respectively.
Reporter's notebook: A pipeline war coming soon near you
Reuters environmental and energy law reporter Sebastien Malo on the booming litigation over pipelines.
More than 2.6 million miles of oil and gas pipelines stretch across the United States. A wave of lawsuits by activists who oppose their construction are now regularly placing pipeline wars near the top of my news coverage.
The high-profile cancellation of the Keystone XL pipeline project in June after the Biden administration revoked a key permit has emboldened activists, who slowed down the project’s development by pummeling it with legal challenges.
Next in their crosshairs is Enbridge's plan to replace its aging Line 3 oil pipeline. The project has hit serious roadblocks in Minnesota, where opponents appear to be following the Keystone XL blueprint.
The situation is not unlike the Greek myth of Sisyphus (bear with me, I was just on vacation in Greece): Companies like Enbridge push the boulder up the hill with every court victory, but it rolls back down again as they face another legal challenge, and then another.
Some judges don't appear reluctant to hit pipeline companies hard with their rulings. The D.C. Circuit last month overturned the 2018 authorizations that allowed Spire STL to build a $285 million natural gas pipeline in Missouri, even as it was already operating.
And another front seems to be opening after a pipeline operator, Portland Pipe Line Corporation, walked away from its lawsuit against a Maine town over an ordinance that now regulates some of the line’s operations.
"When used to test for drugs sprayed on paper (such as legal mail), these tests are less accurate than witchcraft, phrenology, or simply picking a number out of a hat."
A proposed class action brought on behalf of Massachusetts prison inmates and criminal defense attorneys over a drug test used to check mail from lawyers. The suit claims the tests result in false positives up to 80% of the time, leading to false accusations against attorneys and inmates and hurting the ability of defense counsel to communicate with their incarcerated clients. (Reuters)
In the courts
- The 2nd Circuit in New York rejected a bid by former President Donald Trump and his adult children to force into arbitration a fraud lawsuit accusing them of exploiting their family name to promote an alleged scam involving a multi-level marketing company that targeted the poor and working class. Kaplan Hecker & Fink co-founder Roberta Kaplan, who represents the plaintiffs and has pursued other cases against Trump, said her clients look forward to gathering more evidence and beginning depositions. Thomas Consovoy of Consovoy McCarthy, a go-to lawyer for Trump, argued the defense. (Reuters)
- In other Trump news, legal experts are saying that the DOJ's refusal to defend Republican U.S. Representative Morris "Mo" Brooks in a lawsuit accusing him of helping to incite the Jan. 6 attack on the Capitol could hamper the former president's legal defense in the same case. (Reuters)
- Lawyers at the New Civil Liberties Alliance representing the publisher of the conservative online magazine The Federalist told the 3rd Circuit that a recent NLRB decision endorsing unions' use of "Scabby the Rat" during pickets should also apply to a satirical tweet by the magazine’s publisher threatening to send employees "to the salt mine" if they unionized. (Reuters)
- The final day of trial over claims by a West Virginia city and county that major drug distributors fueled the U.S. opioid epidemic prompted a warning from a lawyer for one of the companies, McKesson, about the consequences of holding them liable for the crisis. "It would force distributors to second-guess doctors' prescribing decisions," potentially interfering in patients' access to appropriate treatment, Timothy Hester of Covington & Burling told U.S. District Judge David Faber in Charleston in his closing argument. (Reuters)
- The 9th Circuit rejected arguments by three Phoenix residents represented by the public interest law firm Public Citizen that the EPA failed to comply with the Clean Air Act when it concluded that Arizona in 2018 achieved required reductions in ozone concentration. (Reuters)
- A Texas man admitted to his role in a scheme to sell the government of New South Wales in Australia 50 million N95 masks he did not have for more than $300 million. Arael Doolittle pleaded guilty to a wire fraud conspiracy charge over the scheme, which saw him and his partner offering the masks at five times their list price. (Reuters)
Industry moves
- Winston & Strawn has hired the former U.S. attorney in Des Moines, Iowa, Marc Krickbaum, as a partner. Krickbaum spent 13 years as a federal prosecutor, working on the cases of convicted former Illinois governors George Ryan and Rod Blagojevich. (Reuters)
- Goodwin has picked up two new partners in its real estate industry practice. Jarrid King joined the firm in New York from DLA Piper, while Akin Gump’s former real estate co-leader David Phelps has joined Goodwin’s Santa Monica, California, office. (The American Lawyer)
- Patent attorneys Kelly Echols and Gregory Johnson have joined Armstrong Teasdale as partners. Echols jumped from Stoel Rives and will be working in Kansas City and Salt Lake City, while Johnson comes from Merchant & Gould and will be based in Denver. (Armstrong Teasdale)
- Healthcare attorney David Balfour has joined Buchalter from Nossaman as a shareholder in San Diego. Also making the move is healthcare litigator Carol Salmacia, who joined the firm as of counsel. (Buchalter)
Columnist spotlight: Tussle between Congress and courts lurks in Google's JPML bid to transfer AG cases
Later today, Google will tell the Judicial Panel on Multidistrict Litigation that it should consolidate more than two dozen antitrust suits – including an enforcement action by 15 state AGs – in a single court, preferably in the Northern District of California. The state AGs don't want their case to be lumped in with private class actions – and, as Alison Frankel explains in her latest column, they may have Congress on their side. Both the U.S. House of Representatives and the Senate are considering bipartisan bills to exempt antitrust enforcement actions by state AGs from the JPML’s consolidation authority. The state AGs warned the JPML that the fast-tracked legislation applies retroactively, so any Google consolidation would have been undone. But then the Administrative Office of the U.S. Courts got involved at Congress. Let’s just say things could get spicy in today’s JPML arguments. Read here to find out why.
Lawyer speak: Biden environmental policies prompt corporate attention to community issues
The Biden administration is making environmental justice a priority amid a push by activists challenging the activities of industrial and manufacturing companies over concerns about pollution, Nadira Clarke, Alexandra Dunn and Lily Chinn of Baker Botts wrote in a new article. They took a look at the administration’s broad approach, which also includes efforts to address climate and economic justice, as well as getting tougher on environmental violations in communities of color. Read more.
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