Good morning. The Epic v. Apple antitrust fight will quickly pivot to the 9th Circuit, as Epic has formally lodged its notice of appeal and Apple could announce any cross-appeal plans in the coming days. Plus: Opening statements are set to begin today in the first U.S. college admissions scandal trial in Boston federal court. Scroll for our weekly calendar, moves and much more. A big week ahead. Let's do this!
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Epic Games has formally started the appeals process to take its antitrust claims against Apple to the 9th Circuit. Represented by lawyers from the firms Cravath and Faegre Drinker, Epic said in a notice of appeal on Sunday that it will challenge a blockbuster judgment that said Apple will not be forced to dramatically overhaul its iOS App Store.
U.S. District Judge Yvonne Gonzalez Rogers on Friday ruled for Epic on a California state law unfair competition claim, and that part of the order says Apple must allow developers to tell consumers about payment options outside the App Store. Gonzalez Rogers did not compel Apple to stop collecting up to 30% on in-app payments.
That’s no small order, but Apple was seen to have dodged a bigger hit: Gonzalez Rogers said the evidence in the case had not established Apple as a “monopolist” in the mobile gaming transactions market. She spurned Epic’s federal antitrust claims.
Still, the ruling invites future challenges to Apple’s market power, write Jan Wolfe and Mike Scarcella. The judge said it was not “impossible” to prove an antitrust violation against Apple “only that Epic Games failed in its burden” to make such a case. The trial court’s opinion also seemed to bolster Google’s defenses of its Play store’s rules, Paresh Dave writes.
Apple, represented by Gibson Dunn and Paul Weiss, did not immediately say whether it will appeal the California law violation and accompanying preliminary injunction.
Read more about how the trial court’s ruling could be a “road map” for future cases.
- Bank of America named Lauren Mogensen as its new global general counsel. Mogensen will take over from David Leitch at the end of this year. (Reuters)
- Houston attorney Rhonda Wills, previously one of the stars of We TV reality show "Sisters in Law," is now starring in a new show of her own, “Relative Justice With Judge Rhonda Wills.” (Reuters)
- Seyfarth Shaw updated its COVID-19 vaccine mandate for staff, dropping a provision that allowed unvaccinated employees to come into the firm’s offices as long as they tested negative every week. (Reuters)
- Gibson Dunn’s Ted Olson reflected on the death of his wife Barbara Olson, a passenger on American Airlines Flight 77 that crashed into the Pentagon on Sept. 11, 2001. (Fox News)
That’s how many pages U.S. District Judge Yvonne Gonzalez Rogers wrote in a major ruling that curbs some Apple App Store practices but does not force the tech company to completely overhaul its business model. Gonzalez Rogers wrote: “While the Court finds that Apple enjoys considerable market share of over 55% and extraordinarily high profit margins, these factors alone do not show antitrust conduct. Success is not illegal.” Read more to understand what Gonzalez Rogers ruled.
In 1894, American Railway Union leader Eugene Debs effectively shut down railroad traffic in the western United States, in a strike that led to rioting and bloody clashes with federal troops. Nearly 130 years later, the DOJ is relying on a U.S. Supreme Court ruling against Debs to shut down the Texas abortion law. Alison Frankel explains why the 1895 Debs case may give the DOJ a right to sue over civil rights violations. Learn more here.
Reuters video journalist Alex Cohen gives you an early view of the week ahead in legal news. Watch the video. For a quick take on what's coming this week, listen to Reuters journalist Tom Rowe's audio Lookahead.
- The first trial in the sweeping Operation Varsity Blues investigation into college admissions gets underway today with opening arguments in the case against Gamal Aziz and John Wilson, who prosecutors say paid hundreds of thousands to secure admission for their children to the University of Southern California as fake athletic recruits. Aziz, a former Wynn Resorts executive, is represented by Robert Sheketoff and Brian Kelly, Joshua Sharp and Lauren Maynard of Nixon Peabody. Hedge fund founder Wilson is represented by Michael Kendall and Lauren Papenhausen of White & Case and Andrew Tomback of McLaughlin & Stern.
- The Office of the Comptroller of the Currency will begin a civil trial in Sioux Falls, South Dakota, against three former Wells Fargo executives over the bank's unauthorized account scandal. Claudia Russ Anderson, the bank's former community bank group risk officer, David Julian, former chief auditor, and Paul McLinko, former executive audit director, are facing millions in fines in the case. Anderson is represented by Doug Kelley of Kelley, Wolter & Scott; McLinko is represented by Timothy Crudo of Coblentz Patch Duffy & Bass and Julian is represented by Tim Perla and Matthew Martens of WilmerHale.
- The 7th Circuit will consider whether to reboot a lawsuit against Fiat Chrysler Automotive claiming injuries in a 2008 crash were caused by a failed airbag The plaintiff is represented by Charles Bonner of the Law Offices of Bonner & Bonner, and Fiat Chrysler is represented by Brian Bell of Swanson, Martin & Bell.
- Purdue Pharma is back in court after securing U.S. Bankruptcy Judge Robert Drain’s approval of its reorganization plan and $10 billion opioid litigation settlement -- this time to seek approval of up to $5.4 million in bonuses for five top executives. The DOJ’s bankruptcy watchdog has objected to the proposal. Purdue is represented by Marshall Huebner of Davis Polk & Wardwell.
Court calendars are subject to last-minute docket changes.
- On Wednesday, Chinese company AB Stable VIII will ask the Delaware Supreme Court to give it another shot at a lawsuit filed after its plans fell through to sell its business Strategic Hotels & Resorts for $5.8 billion. The buyer, a subsidiary of South Korean financial services company Mirae Asset Financial Group, backed out of the deal, and a lower court held that AB Stable VIII breached the contract and gave the buyer the right to cancel the sale. AB Stable is represented by Theodore Mirvis, William Savitt, Sarah Eddy and Ryan McLeod of Wachtell, and the Mirae subsidiary is represented by Kathleen Sullivan, Michael Carlinsky and William Adams of Quinn Emanuel and Kap-You Kim of Peter & Kim Attorneys at Law.
- Also on Wednesday, the 1st Circuit will consider whether to revive claims that Whole Foods Market selectively enforced an employee dress code to prevent workers from wearing items supporting the Black Lives Matter movement. The lower court tossed the lawsuit after holding that the plaintiffs failed to show they were discriminated against because of their race or for associating with people of a certain race. The plaintiffs are represented by Shannon Liss-Riordan of Lichten & Liss-Riordan, and Whole Foods is represented by Michael Banks of Morgan Lewis & Bockius.
- U.S. District Judge Alvin Hellerstein on Wednesday will hear oral arguments as the Boy Scouts of America urges him to end a trademark case brought by the Girl Scouts of the USA. The Girl Scouts sued its scouting counterparts, alleging that the Boy Scouts' rebranding as "Scouts BSA" infringed the Girl Scouts’ trademarks. The Girl Scouts organization is represented by Bruce Ewing of Dorsey & Whitney, and the Boy Scouts is represented by Rachel Kassabian of Quinn Emanuel.
- On Thursday, U.S. Magistrate Judge Laurel Beeler in San Francisco will hear arguments on stock-trading app Robinhood's motion to dismiss rapper Ice Cube's claims that it misused his image in advertising. Ice Cube is represented by Michael Taitelman and Sean Hardy of Freedman & Taitelman. Robinhood is represented by Mitchell Langberg and Matthew McKissick of Brownstein Hyatt Farber Schreck.
"There's no such thing as a part-time textualist. If we're not textualists in every case, then we're not really textualists at all."
U.S. Circuit Judge James Ho, who wrote for the majority in a 5th Circuit en banc ruling that held Helix Energy Solutions Group has to pay a supervisor of offshore oil rig workers overtime even though he earns $200,000 yearly. The Fair Labor Standards Act’s exemption for highly paid executives didn’t apply to supervisor Michael Hewitt because he’s paid on a daily basis, said Ho, a Trump appointee, acknowledging the ruling doesn’t benefit the industry but a textualist reading of the law requires it. Read more to understand Ho’s reasoning in the case.
- The U.S. Justice Department has begun its appeal of a Texas federal judge's ruling that blocked new applications to an Obama-era program protecting immigrants who arrived in the U.S. as children from deportation. (Reuters)
- Lawyers from Mayer Brown are on the legal team for Beijing Neu Cloud Oriental System Technology in a new complaint in federal court accusing IBM and its Chinese subsidiary in Manhattan of stealing trade secrets. (Reuters)
- A Massachusetts federal judge has denied a bid from Teva Pharmaceuticals to dismiss a U.S. lawsuit accusing the Israeli drugmaker of using kickbacks paid through charitable foundations to boost sales of its multiple sclerosis drug Copaxone, resulting in false claims being submitted to Medicare. (Reuters)
- Kansas has agreed to pay nearly $2 million in legal fees to lawyers at the ACLU, Dentons and Dechert who successfully advocated against a restrictive state voting law. (AP)
- U.S. District Judge Robert Pitman in the Western District of Texas, an appointee of former President Barack Obama, will oversee the Justice Department’s lawsuit challenging the new Texas abortion-rights restrictions. (The National Law Journal)
- Brad Small has joined Fox Rothschild’s entertainment law practice in Los Angeles. Small, who has represented notable names like Joe Exotic and pro wrestler Chris Jericho, was previously a partner at Rosenfeld, Meyer & Susman. (Fox Rothschild)
- E. Ryan Coombs is moving to O’Melveny, where he will be a partner in its San Francisco office. Coombs, a capital markets attorney, previously worked at Simpson Thacher. (O’Melveny)
- DLA Piper has snapped up Shiukay Hung, a former senior director at Tishman Speyer. He’ll be a partner in DLA’s finance practice in New York. (DLA Piper)
- Gaela Gehring Flores is headed to Allen & Overy, where she’ll be a partner in the Washington, D.C., office. She was previously in Arnold & Porter’s international arbitration and litigation practice. (Allen & Overy)
New lawyers hoping to enter appellate practice during the COVID-19 pandemic have found themselves shut out of many of the traditional networking and learning experiences available to earlier generations. But a number of creative (and virtual) ways to bring these lawyers on board have popped up, which actually has opened up the training ground to a far larger cohort of young lawyers, writes Mary-Christine Sungaila of Buchalter. Read more to find out what opportunities are available to the next generation of appellate lawyers.
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