Good morning. The historic U.S. Supreme Court nomination of Ketanji Brown Jackson will thrust the federal appeals judge into the center of the country’s divide over race. Her would-be colleagues on the court today take up one of the most consequential environmental-law cases in years, and the first trial stemming from the Jan. 6, 2021, attack on the U.S. Capitol is set to begin today. We’ve got the latest on J&J’s talc bankruptcy and a 3M appeal in the 11th Circuit. It’s a busy Monday and there’s a lot already on the calendar for the week ahead. Glad you’re with us — let’s dive in.
Our colleague Karen Sloan, who reports on law firms, law schools and the business of law, is cowriting The Daily Docket while Diana Novak Jones is on parental leave. Were you forwarded this email? Subscribe here.
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The historic selection of D.C. Circuit Judge Ketanji Brown Jackson as the first Black woman U.S. Supreme Court nominee will push her to the center of America's divide over race, our colleagues Andrew Chung and Lawrence Hurley write.
Naming a Black woman to the court is a sign that America is making progress in addressing racism, Fatima Goss Graves, chief executive of the National Women's Law Center, told Reuters. "Her presence will remind this country of the progress that is possible and will begin the job of shattering stereotypes that constrict Black women in leadership at all levels," Graves said.
Race will be a central topic at the Supreme Court next term. One major dispute, involving Harvard University and the University of North Carolina, could end affirmative action policies used by colleges and universities in their admissions processes to increase their enrollment of Black and Hispanic students to achieve campus diversity.
In another case, the justices also have agreed to take up Alabama's defense of a Republican-backed map of U.S. House of Representatives districts that a lower court found was drawn to minimize the clout of Black voters in the state.
>> Read more: Ketanji Brown Jackson's U.S. Supreme Court nod follows multifaceted legal career
The U.S. Supreme Court this morning will take up the Environmental Protection Agency's authority to regulate greenhouse gas emissions from existing coal- and gas-fired power plants under the Clean Air Act. A ruling that restricts EPA power could hobble the Biden administration’s move to curb power sector emissions, write Lawrence Hurley and Valerie Volcovici in an analysis of the litigation.
The case, arriving from the D.C. Circuit, was brought by Republican-led states led by coal producer West Virginia, which will be represented at the argument by Lindsay See, the state’s solicitor general who is also a Gibson Dunn alum.
U.S. solicitor general Elizabeth Prelogar will argue for the EPA. Jones Day’s Yaakov Roth, who clerked for the late Justice Antonin Scalia, represents the North American Coal Corporation. Appellate veteran Beth Brinkmann of Covington will argue for power companies including Consolidated Edison, Exelon and New York Power Authority.
The justices are reviewing the D.C. Circuit’s 2021 ruling striking down Republican former President Donald Trump's Affordable Clean Energy rule. That regulation would have imposed limits on a Clean Air Act provision called Section 111 that gives the EPA authority to regulate emissions from existing power plants.
- Fried Frank; Weil Gotshal; Willkie Farr; Vinson & Elkins and O'Melveny & Myers are among the firms that have matched the associate salary increases rolled out by Davis Polk last week. Litigation firm Selendy Gay Elsberg and Magic Circle firms Clifford Chance; Linklaters; and Freshfields also matched the raises, which have senior associates making $396,500. Cadwalader and Kirkland announced similar pay increases. (Reuters)
- U.S. District Judge Emmet Sullivan was cleared of allegations of misconduct for serving on a commission that recommends nominees to the president to serve on the District of Columbia's local courts. The D.C. Circuit’s Judicial Council voted 6-2 to uphold the dismissal of an unusual misconduct complaint filed against Sullivan by another judge. (Reuters)
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An Austrian multinational construction company went on the offensive in a fee dispute with Brown Rudnick, claiming the law firm routinely overbilled it and demanding $22 million. Brown Rudnick sued Christof Industries Global GmbH in September, alleging the industrial plant builder owed $8 million in attorney fees and interest from an international arbitration over a failed construction project. (Reuters)
- Three attorneys who violated the Federal Circuit’s COVID-19 protocols will not face any punishment for bringing more attendees to a 2021 oral argument than allowed, the court ruled. The unnamed attorneys “clearly” broke the rules, but the court opted not to sanction them because they expressed remorse and have no record of misconduct. (Reuters)
- Longtime Washington lawyer Thomas Buchanan has retired from Winston & Strawn after more than three decades with the law firm, including a period leading its office in the capital. Buchanan, 68, is a former federal prosecutor who previously co-chaired Winston’s U.S. Foreign Corrupt Practices Act practice. (Reuters)
That’s the number of sitting Supreme Court justices with law degrees from either Harvard or Yale. The confirmation of Biden nominee Ketanji Brown Jackson won’t loosen the grip of those two elite schools on the high court. Jackson is a Harvard Law alumna, and she is set to replace fellow Harvard J.D. and former boss Stephen Breyer. Some critics worry the court’s Ivy League pedigree has resulted in a bench that’s out of touch with everyday Americans. Read more.
Alison Frankel reports on one of the strangest cases spawned by the COVID-19 pandemic. In March of 2020, California rushed into a deal to buy 100 million masks for frontline workers. The purported supplier was a brand new company founded by two political consultants. That smelled fishy to JPMorgan — and to the suppliers’ own bankers. The bankers agreed that JPMorgan would cancel California’s $457 million wire transfer. California officials thanked JPMorgan for raising red flags. But then the supplier sued its bank, which, in turn, sued JPMorgan. And now JPMorgan wants California to backstop any liability it may face.
Reuters video journalist Alex Cohen gives you an early view of the week ahead in legal news. Watch the video. And to hear what’s coming up this week, listen to Tom Rowe’s Audio Lookahead.
"I'm just basking in the reflected glow of her historic achievement."
—Podhurst Orseck partner Stephen Rosenthal in Miami, longtime friends with U.S. Supreme Court nominee Ketanji Brown Jackson, reflecting on his newfound attention stemming from a viral 1988 Miami Palmetto Senior High School yearbook photo showing Rosenthal and the future judge standing together. Jackson was quoted then as saying: "I want to go into the law and eventually have a judicial appointment." Rosenthal has remained close with Jackson for years; they both attended Harvard Law. Rosenthal last week flew to Washington, D.C., because he "couldn’t imagine not being there if she got the nomination." He was a dinner guest of Jackson's the night she got the call from President Joe Biden telling her she would be nominated to succeed Justice Stephen Breyer.
- Opening statements in the U.S. District Court for the Eastern District of Michigan are expected in the first bellwether trial in the Flint water crisis. The plaintiffs, represented by the firm Levy Konigsberg, are four children who lived in Flint and were exposed to lead-contaminated drinking water. The defendants, represented by firms Faegre Drinker, Plunkett Cooney, Campbell, Conroy & O’Neil and Bush Seyferth are engineering companies accused of professional negligence. Four bellwether trials are expected to take place following last year's approval of a partial settlement worth $626 million for victims. U.S. District Judge Judith Levy is presiding over the litigation.
- The first trial of a man accused of joining the Jan. 6, 2021, assault on the U.S. Capitol by followers of Donald Trump is to begin with jury selection. Guy Reffitt is charged with obstructing an official proceeding, trespassing and witness tampering. Reffitt is represented by William Welch III. Assistant U.S. attorneys Jeff Nestler and Risa Berkower are prosecuting the case before U.S. District Judge Dabney Friedrich in Washington, D.C.
- U.S. District Judge James Boasberg in Washington, D.C., will meet with the lawyers in the Federal Trade Commission’s antitrust case against Meta’s Facebook for a scheduling conference. Boasberg last month declined to dismiss the FTC’s case, which alleges the social media company crushed or bought rivals to maintain its market dominance. Facebook, which denies the allegations, recently expanded its Kellogg Hansen trial team to include lawyers from Davis Polk and WilmerHale. The FTC’s trial team is led by a top trial counsel at the agency, Daniel Matheson, whose career previously included stints at big law firms.
- A California federal judge will hear Vans' bid for a preliminary injunction to stop Walmart from selling alleged copycats of more than 20 versions of its shoes. Vans, represented by McGuireWoods, says there will be irreparable harm to its reputation if Walmart isn't blocked from "flooding the market with huge quantities of cheaply made knockoffs," while Walmart said it doesn't violate Vans' trademark rights and that an injunction would cost it tens of millions of dollars. Walmart is represented by the firms Kinsella Weitzman Iser Kump Holley and Amster Rothstein & Ebenstein.
Court calendars are subject to last-minute docket changes.
- By Tuesday, U.S. District Judge Jed Rakoff is expected to issue a written opinion explaining why he announced his plan to dismiss Sarah Palin’s defamation case against the New York Times while jurors were deliberating. Jurors said they saw news of Rakoff’s plan but that it did not affect their consideration of her lawsuit. The jury ruled for the Times. Palin had claimed the Times defamed her over a 2017 editorial that incorrectly linked the former Alaska governor and Republican U.S. vice presidential candidate to a mass shooting six years earlier. Palin’s lawyers are planning to ask for a new trial, and they said they will seek to disqualify Rakoff.
- The 4th Circuit on Wednesday will hear a bid by a former public defender in North Carolina to revive a lawsuit claiming the federal judiciary's internal process for addressing sexual harassment reports violated her constitutional rights. The judiciary has defended the process and said the courts were committed to providing a workplace free from harassment. Those policies provided a way for the plaintiff to address her allegations of harassment, lawyers for the judiciary contend. Jeannie Suk Gersen of Harvard Law School and Cooper Strickland represent the Jane Doe plaintiff. H. Thomas Byron III and Amanda Mundell of the U.S. Justice Department represent the judiciary.
- On Thursday, U.S. District Judge Indira Talwani in Massachusetts will hold a final pretrial conference ahead of a March 8 trial for a former water polo coach at the University of Southern California charged with participating in the vast U.S. college admissions scandal. Prosecutors say Jovan Vavic accepted bribes to admit students as fake athletic recruits. Vavic, represented by the firms Larson LLP and BLA Schwartz, has pleaded not guilty. A judge earlier this month sentenced John Wilson, founder of Hyannis Port Capital, to 15 months in prison for his participation in the scheme. A lawyer for Wilson, Noel Francisco of Jones Day, has vowed to appeal.
Court calendars are subject to last-minute docket changes.
- Kramer Levin added Paris-based partner Jerome Labrousse to its tax practice. He comes from French firm De Gaulle Fleurance. (Reuters)
- Willkie Farr has added Joe Kaczorowski as a partner in its litigation and corporate and financial services departments. He is based in Los Angeles and previously practiced at Cooley. (Willkie)
- Partners John Heitmann, Steven Augustino and Joshua Guyan have joined Nelson Mullins’ communications law practice in Washington, D.C. The trio come from Kelley Drye. (Nelson Mullins)
The distance between the U.S. and Europe on laws governing data collection and use is wide and growing, write Gary Kibel and Zachary Klein of Davis+Gilbert. Uncertainty in the industry is increasing and U.S. companies are waiting for solutions to privacy challenges, the authors write. Read more about the regulatory schemes.
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