Good morning. A new U.S. legislative push could transform how the federal judiciary handles sealing requests, in a bid to reduce secret court filings. Plus, the incoming leader at the U.S. patent office is poised to wield more power than past directors, and there’s a monster fight over a trademark award brewing in a California federal court. Black law deans say they expect the confirmation of Ketanji Brown Jackson, as early as today, will inspire a new wave of students; the New York courts prepare to fire 103 employees over their lack of COVID vaccination; and the alignment of justices in a new “shadow docket” ruling is causing buzz. Let’s jump in!
Our colleague Nimitt Dixit is co-writing The Daily Docket while Diana Novak Jones is on parental leave. Were you forwarded this email? Subscribe here.
A slate of newly proposed rules for the federal judiciary, introduced in the House and Senate, include a mechanism to remove judges from hearing cases in the event of a conflict of interest and another intended to minimize the filing of court documents under seal, Dan Levine reports. The proposed legislation would require the full U.S. Supreme Court to review requests for recusal in high court cases, eliminating the current practice where justices individually decide whether to sit on the sidelines for a case that poses an ethical conflict.
On the docket secrecy front, new rules would require federal judges to announce a compelling reason for sealing any document and call for the secrecy to not last “longer than necessary." The courts would be required to provide public notice when a party has requested records to be sealed, and the legislation directs judicial leaders to devise an inexpensive process for someone outside the case to contest a secrecy motion.
The 2019 Reuters series "Hidden Injustice" revealed how U.S. judges had routinely allowed consumer products makers to file information under seal that is pertinent to public health and safety. The investigation found that evidence that could have alerted consumers and regulators to potential dangers of allegedly defective products remained hidden.
Kathi Vidal’s confirmation by the Senate to head the U.S. Patent and Trademark Office comes at a time of heightened disagreement and confusion in the courts over when an invention can be patented, with a potential landmark Supreme Court case pending on the issue, reports Blake Brittain.
Vidal, most recently a Winston & Strawn partner, will have more power over patent decisions than previous PTO heads, following the high court’s ruling last year that gave the director authority to review patent-eligibility rulings from the office's Patent Trial and Appeal Board. Vidal has argued both for and against patent eligibility in cases at the Federal Circuit, and said during a Senate hearing that there should be "more clarity" on the issue.
While patent attorneys, including Trump-era PTO director Andrei Iancu, now a partner at Irell & Manell, praised Vidal’s nomination, she will have to walk a fine line to balance the interests of those who broadly supported Iancu's PTAB policies, like major pharmaceutical companies, and those who broadly oppose them, like major tech companies.
D.C. Circuit nominee J. Michelle Childs, who President Joe Biden recently considered for a seat on the U.S. Supreme Court, spoke about threats facing judges as part of an American Bar Association event calling for legislation to bolster judicial security. Childs, a South Carolina federal judge, said she had received a death threat and experienced an "unnerving" incident near her home amid rising threats to judges nationally. (Reuters)
A lawsuit alleging plaintiffs’ firm Labaton Sucharow duped two French consultants into a settlement involving a client-referral arrangement was trimmed by a federal judge in Manhattan but not dismissed. U.S. District Judge Colleen McMahon said the consultants could pursue a "fraudulent inducement" claim against Labaton. (Reuters)
The Utah State Bar dodged claims by an attorney that mandatory membership and bar dues infringed her 1st and 14th Amendment rights. U.S. District Judge Tena Campbell’s decision to dismiss the claims came as the U.S. Supreme Court this week declined to hear cases from Oklahoma and Texas that similarly challenged a 1990 Supreme Court case, which upheld mandatory bar membership. (Reuters)
Midsize law firm Fennemore Craig has snagged 25 lawyers and 25 other legal professionals from California-based firm Gresham Savage Nolan & Tilden in its latest western expansion. Fennemore CEO James Goodnow said the firm tapped “the substantial majority of the lawyers” from Gresham, whose remaining lawyers are “winding down” the firm’s operations. (Reuters)
That’s the number of New York state court employees who will receive termination notices today for not submitting proof of vaccination against COVID-19. Four judges remain in non-compliance, and they will remain barred from entering any court facility and must work from home, a court spokesperson said. Associate Judge Jenny Rivera of the New York Court of Appeals, the state’s top court, has been appearing by video for hearings and not sitting with her colleagues in their Albany courtroom. The New York courts employ more than 15,000 staff members and 3,000 judges. Here’s how many employees said they’d retire rather than prove vaccination.
The data analytics company Palantir has escalated its international feud with early investor Mark Abramowitz in dramatic fashion, petitioning a U.S. court on Tuesday to order Abramowitz to turn over privileged communications with his lawyers from Williams & Connolly because the material is needed in a German criminal investigation. Alison Frankel reports on the petition, which comes after judges on a German patent tribunal referred Abramowitz to Munich prosecutors for attempting to commit litigation fraud, a crime in Germany. Williams & Connolly told Frankel that the firm and its client have done nothing wrong but Palantir insists this is the rare case in which the crime-fraud exception to privilege applies.
Video: Efforts to pursue Russians for war crimes face myriad hurdles - legal scholars
Legal scholars Michael Newton of Vanderbilt Law School, Laura Dickinson of GWU Law and Alex Whiting of Harvard Law talk with Reuters video journalist Tom Rowe about ways around obstacles facing prosecutors as they pursue potential war crimes charges for abuses in Ukraine. Watch the video.
"To see soon-to-be Justice Jackson sitting in her robe — the image of it is so powerful and meaningful."
—Kimberly Mutcherson, dean of Rutgers Law, speaking about the historic nomination, and likely confirmation, of Ketanji Brown Jackson, who would become the first Black woman to serve on the U.S. Supreme Court. A final confirmation vote could occur as early as this afternoon. Mutcherson and two other fellow Black female deans at U.S. law schools described Jackson’s rise as an inspiration to underrepresented groups in the profession. Here are their observations, and hopes.
Reporter's notebook: The world of bankruptcy is more visible than ever
Reuters bankruptcy and restructuring reporter Maria Chutchian on the new spotlight in Washington, D.C., over bankruptcy legal services
Bankruptcy attorneys are a little unaccustomed to the increasing attention their work has been getting on Capitol Hill.
Thanks largely to the rise in popularity of companies using Chapter 11 to deal with mass tort litigation, we’re seeing efforts by Washington lawmakers like Senator Elizabeth Warren, a Democrat of Massachusetts, aiming to curb that practice, among others that are favored by large corporate debtors.
The lawmakers, to the chagrin of some long-time bankruptcy practitioners who view these tools as critical to business restructurings, have introduced bills in Congress that would substantially alter current features of corporate bankruptcies. Even practices used in commercial bankruptcies that aren't linked to mass torts — like judge shopping and executive bonuses — have come under the microscope.
The most high-profile bankruptcy tool that lawmakers want to eliminate are non-debtor releases, a form of legal protection for people and entities that are connected to a bankrupt company but have not filed for bankruptcy themselves. Purdue Pharma and members of the Sackler family that own the OxyContin maker have made this previously under-the-radar component of many large bankruptcies widely visible and widely despised by those who believe it is being used to prevent opioid victims and their families (or sex abuse survivors in the Boy Scouts case, or talc plaintiffs in the Johnson & Johnson case) from having their day in court.
Of course, these legislative efforts may be all bark and no bite. They have yet to gain much steam, and Congress’ ability to stop what some view as egregious abuses of bankruptcy law remains to be seen. But one thing is for sure: more eyes are watching this once-niche area of corporate law than ever before.
Closing arguments are scheduled in the second trial to result from the "Varsity Blues" college admissions scandal. Prosecutors for several weeks presented testimony and evidence against former University of Southern California water polo coach Jovan Vavic. He is among more than 50 people who have been charged since 2019 following the investigation into a vast scheme in which executives and celebrities illicitly secured spots for their children at prestigious universities. Vavic, represented by Stephen Larson of Larson LLP, has pleaded not guilty.
U.S. District Judge Amit Mehta in Washington, D.C., has scheduled a hearing for today in the U.S. Capitol riot prosecution of Kelly Meggs, following the revocation of her defense lawyer’s license to practice law in Virginia. The defense lawyer, Jonathon Moseley, is not a member of the D.C. bar but is a member of the D.C. federal court, which requires membership in another state bar. Mehta did not give a reason for the status conference. Moseley declined to comment on the specific conduct that led to his disbarment, and he has appealed the decision. Meggs has pleaded not guilty to charges that include seditious conspiracy, obstructing an official proceeding and destruction of government property.
A Brooklyn federal court jury will resume deliberations in the trial of former Goldman Sachs banker Roger Ng, accused of helping to loot billions of dollars from Malaysia's 1MDB sovereign wealth fund. Ng, represented by Marc Agnifilo, pleaded not guilty to conspiring to launder money and violating an anti-corruption law. Prosecutors contend Ng, Goldman's former top investment banker for Malaysia, helped his former boss Tim Leissner embezzle money from 1MDB. Leissner pleaded guilty to similar charges in 2018 and agreed to cooperate with prosecutors.
Court calendars are subject to last-minute docket changes.
In what would rank among the largest-ever U.S. trademark awards, an arbitrator said Bang Energy maker Vital Pharmaceuticals owes $175 million to Monster Energy and orange-drink maker Orange Bang for violating "Bang" trademark rights. The arbitral ruling, which must be affirmed by a California federal court, said Vital breached a 2010 settlement deal with Orange Bang by using the "Bang" name outside the scope of the agreement. (Reuters)
Legal defense costs incurred by McKesson in lawsuits accusing it of enabling illegal opioid sales will not have to be covered by its two insurers, National Union Fire Insurance Co of Pittsburgh and ACE Property and Casualty Insurance Co. U.S. District Judge Jacqueline Scott Corley in San Francisco said the lawsuits accused the drug distributor of deliberate conduct, which was not covered by the policies at issue. (Reuters)
A Minnesota federal judge trimmed a lawsuit accusing Viatris and pharmacy benefit managers Optum, CVS Caremark and Express Scripts of conspiring to drive up the price of the anti-allergy medication EpiPen. Plaintiff drug distributors Rochester Drug Co-Operative and Dakota Drug failed to make a case that Viatris' predecessor Mylan and the PBMs unreasonably restrained trade. (Reuters)
In a 5-4 split, the U.S. Supreme Court temporarily revived a Trump-era rule intended to fast-track big energy projects by limiting the states' power to curtail them under the Clean Water Act. The majority gave no reasons for granting the application filed on its “shadow docket,” where some cases are quickly decided with minimal briefing, no arguments and no explanation. Chief Justice John Roberts joined the court’s liberal justices in saying the case did not belong on the shadow docket because the petitioners had not identified any threat of immediate harm. (Reuters)
Squire Patton Boggs added three partners to its global data privacy, cybersecurity and digital assets group including David Naylor, who will head the practice in the UK. Naylor and Malcolm Dowden joined the firm’s office in London. Bartolomé Martín is based in the firm’s Madrid office. (Reuters)
- Lowenstein Sandler hired Matthew VanderGoot as a partner in the firm’s technology group in Washington, D.C. He was previously at DLA Piper. (Lowenstein)
Bryan Cave added Anne Friedman as a partner in the firm’s technology, commercial and government affairs practice in Santa Monica. She joins the firm from DLA Piper. (Bryan Cave)
King & Spalding hired Sara Brinkmann as a partner in its healthcare practice in Houston. Brinkmann was earlier at Reed Smith. (King & Spalding)
Duane Morris said Adam Beckerink joined the firm’s corporate practice in Chicago. Beckerink formerly was at Morgan Lewis. (Duane Morris)
Latham said Christopher Frey joined the firm as a New York-based white-collar partner. He arrives at Latham from Paul Weiss. (Latham)
BakerHostetler added Stephen Ruscus as a Washington, D.C.-based government contracts partner from Morgan Lewis. (BakerHostetler)
A pioneering Illinois state law that protects biometric data privacy — including fingerprint scans and facial recognition — is being looked at by other states as a possible model for updating their security statutes, writes Fredric Bellamy of Dickinson Wright. In Illinois, courts have seen a wave of cases over claims that biometric data has been collected and used without consent. Learn more about one significant aspect of emerging biometric privacy laws.