Good morning. A leaked initial draft majority opinion suggests the U.S. Supreme Court is set to overturn Roe v. Wade, according to a Politico report on what would be an unprecedented disclosure of a draft opinion. Meanwhile, one of Russia’s largest banks is facing a warning in a U.S. court as its lawyers at a big firm make their way out of the litigation. Plus: New data from the ABA reveals the scope of racial disparities in bar exam pass rates; Apple is suing a rival in a new trade secrets action over its poaching of the tech company’s engineers; and Meta just got hit with a lawsuit over its new logo. It’s a news-packed Tuesday. Let’s jump in.
Our colleague Dan Brillman is co-writing The Daily Docket while Diana Novak Jones is on parental leave. Were you forwarded this email? Subscribe here.
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The U.S. Supreme Court looks set to vote to overturn the landmark 1973 abortion rights ruling Roe v. Wade, according to a leaked initial draft majority opinion published by Politico. The unprecedented publication sent shock waves through the U.S., marked a major breach of confidentiality and heightened the stakes in the Mississippi case at the center of the dispute.
“Roe was egregiously wrong from the start,” Justice Samuel Alito Jr wrote in the draft opinion, according to Politico. Reuters was unable to confirm the authenticity of the draft. Justices can change their votes before the court publishes a final ruling.
The Supreme Court declined to comment. In December, the Supreme Court's conservative majority at oral argument in the Mississippi case, signaled a willingness to curtail abortion rights and perhaps overturn Roe v. Wade.
Abortion rights advocates condemned the substance of the draft opinion, while conservatives and Republicans praised it. Court observers described the leak itself as rare if not unprecedented. Hogan Lovells appellate partner Neal Katyal on Twitter wrote "if it is right it is the first major leak from the Supreme Court ever. It's the Pentagon Papers equivalent" for the Supreme Court."
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U.S. Supreme Court adds bankruptcy, overtime and civil rights cases to docket |
The Supreme Court agreed to hear a case over whether a highly paid oil rig supervisor is entitled to overtime pay under the Federal Labor Standards Act (FLSA). In 2020, the 5th Circuit said that Michael Hewitt was entitled to overtime despite making more than $200k a year, because he was on a daily rate rather than a salary. The offshore company, Helix Energy Solutions, represented by Kirkland's Paul Clement, argued that Hewitt qualifies as a "highly compensated executive" who is exempt from overtime pay under the FLSA. Daniel Wiessner has the story.
The high court Monday also took on a case over whether state-owned nursing homes can face private lawsuits accusing them of violating Medicare and Medicaid rules, Brendan Pierson writes. A complaint brought by Ivanka Talevski, represented by Andrew Tutt of Arnold & Porter, said Talevski’s husband was subjected to harmful psychotropic drugs and an inappropriate transfer to another facility in violation of the Federal Nursing Home Reform Act. Petitioner Health and Hospital Corp of Marion County, represented by Larry Robbins of Kramer Levin, maintains that Gorgi Talevski's treatment was related to his violent behavior toward staff and other residents.
And the Supreme Court took a case to determine whether an individual in bankruptcy is liable for her business partner’s — and husband's — fraud, even if she was unaware of her partner’s actions, Maria Chutchian writes. Kate Bartenwerfer is asking the high court to overturn a 9th Circuit ruling that she can't use bankruptcy to discharge damages that arose out of her husband's fraudulent omissions in selling their house because her husband was the one who provided inaccurate information about the home before it was sold.
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Opinions on the fairness of the U.S. justice system vary widely according to age and race, according to an American Bar Association poll. Slightly more than half of Americans polled by the ABA in March either agreed or strongly agreed that the justice system has built-in racial biases. That figure ticked down to 48% among white respondents and rose to 75% among Black respondents. Among Hispanics, 54% agreed or strongly agreed. (Reuters)
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The SEC is accusing a Florida attorney and his settlement management company of lying to disabled plaintiffs to secretly reap fees from managing $46 million in settlement payouts. (Reuters)
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Pro bono management platform Paladin has raised an $8 million Series A round that included backing from billionaire Mark Cuban. Paladin says it works with large law firms including Dentons, Wilson Sonsini, McDermott and Clifford Chance. (Reuters)
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That’s the first-time pass rate among Black law graduates, according to new figures the American Bar Association released this week, revealing a racial gap that got worse in 2021. The data highlighting racial disparities in bar exam pass rates could add fuel to ongoing debates over the fairness of the attorney licensing test and whether it should be reformed. The national first-time pass rate for white J.D. graduates who took the bar exam in 2021 was 85%. Hispanic law grads posted a first-time pass rate of 72%, and Asian law grads had a 79% pass rate. The first-time pass rate for all bar exam takers was 80%, a three-percent decline from 2020.
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Sears creditors have filed adversary proceedings with claims totaling more than $2 billion against the company’s former chairman and a host of other defendants. But they’ve blown through the original $25 million set aside to litigate the cases. Their solution? A deal for up to $35 million in additional funding from the litigation financier Bench Walk. Alison Frankel reports on the creditors’ unusually transparent motion for approval of the deal, which would apparently be one of the biggest-ever funding transactions in a Chapter 11 bankruptcy.
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"It would be impossible for plaintiffs to effectively vindicate their rights if Commissioner [Roger] Goodell were to oversee this arbitration process."
—Douglas Wigdor, a lawyer for three Black coaches suing the NFL for discrimination in hiring practices. The NFL last month said the claims lacked merit, and asked U.S. District Judge Valerie Caproni in Manhattan to either dismiss the case or send it to arbitration, which the coaches — Brian Flores, Steve Wilks and Ray Horton — say is inherently unfair as Goodell would be the mediator of such a process. Wigdor pointed out that NFL teams paid Goodell $120 million in salary over the past two years. Paul Weiss partner Loretta Lynch, a former U.S. attorney general now representing the NFL, said the league considers its arbitration process "neutral." Read more from the initial court hearing.
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A 2nd Circuit panel in New York will take up the appeal of NXIVM sex-cult founder Keith Raniere and Seagram liquor heiress Clare Bronfman, accused of helping to bankroll the Albany-based group. Raniere, represented by Joseph Tully of the California firm Tully & Weiss, is challenging his conviction for racketeering conspiracy, sex trafficking and possession of child pornography, among other crimes, and 120-year prison sentence. Bronfman, whose lawyer is Harvard Law professor Ronald Sullivan Jr, is appealing her prison sentence of more than six years. Assistant U.S. Attorney Tanya Hajjar will argue for the government to defend Raniere’s conviction and prison term. Assistant U.S. Attorney Kevin Trowell will argue against Bronfman’s challenge to her punishment. Circuit Judges Jose Cabranes, Guido Calabresi and Richard Sullivan will hear arguments.
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The Tennessee Supreme Court will consider whether Hulu and Netflix should be required to pay a fee to local governments such as the city of Knoxville like a traditional cable company in the latest skirmish over whether streaming services are “video service providers” subject to cable operator fees. U.S. District Judge Clifton Corker in September certified the question to the state high court. Netflix is represented by a team from Latham, including Gregory Garre. Hulu has a team from Wilson Sonsini, including Victor Jih. Watch the court argument here.
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The U.S. Senate Judiciary Committee will hold a hearing titled “An Ethical Judiciary: Transparency and Accountability for 21st Century Courts.” Democratic Senator Sheldon Whitehouse of Rhode Island will lead the discussion, which will examine whether “a strong code of ethics” should be requested for the U.S. Supreme Court. Witnesses include Amanda Frost of American University Washington College of Law; Thomas Dupree Jr of Gibson Dunn; and Jennifer Mascott of Antonin Scalia Law School. Watch the hearing here.
Court calendars are subject to last-minute docket changes.
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A U.S. judge will allow Latham to stop representing Russia's VTB Bank in a lawsuit over the downing of a passenger flight over Ukraine, but warned the bank to quickly hire new attorneys or risk being in default. (Reuters)
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Apple is suing startup Rivos for allegedly stealing trade secrets relating to its SoC (system-on-chip) technology. In a complaint filed in San Jose federal court, the tech giant says Rivos targeted Apple employees in its hiring, specifically those "with access to Apple proprietary and trade secret information about Apple’s SoC designs.” Apple is represented by Morrison & Foerster. (Reuters)
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Columbia University was awarded $185 million by a Virginia federal court jury for cybersecurity company NortonLifeLock’s violations of its rights in two patents related to fighting malware. The jury also found Norton, formerly known as Symantec, infringed the patents willfully. Lawyers from Latham and Troutman Pepper defended Norton, and Columbia’s team included attorneys from Sullivan & Cromwell. (Reuters)
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Switzerland-based nonprofit blockchain developer Dfinity sued Meta Platforms in California federal court, alleging the new logo adopted by the company formerly known as Facebook will cause consumer confusion with its own infinity-symbol logo. (Reuters)
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A Philadelphia federal jury found Gongda Xue, a former scientist at a biomedical research facility in Switzerland, guilty of conspiracy, trade secrets theft and wire fraud charges. Xue was charged with conspiring with his sister to steal trade secrets from GlaxoSmithKline to benefit biopharmaceutical companies they established. (Reuters)
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Judges on Massachusetts' top court said Grubhub delivery workers are distinct from the "last-mile" drivers that some courts have said are exempt from arbitrating legal claims, casting doubt on a bid by Grubhub workers to keep a proposed class action in court. (Reuters)
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The U.S. Supreme Court ruled in favor of a Christian group in a free-speech case that involved a series of flags flown at Boston's City Hall. The court said 9-0 that Boston, represented by Ropes & Gray, violated the free speech rights of Camp Constitution by refusing to fly a flag bearing the image of a cross as part of a program that let private groups use the flagpole while holding events in the plaza below. (Reuters)
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O’Melveny opened a new Houston office anchored by corporate deal partners Angela Olivarez, Steven Torello and Ryan Cicero, who arrive from Willkie Farr. (Reuters)
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Fox Rothschild opened a Boston office with the addition of intellectual property lawyers and professionals from Mintz Levin. The new hires include partner Pete Corless. (Reuters)
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Dentons said Angel Cortiñas and Jonathan Kaskel joined the firm’s Miami office as litigation and dispute resolution partners from Gunster Law Firm. Cortiñas will serve as managing partner of the office. (Dentons)
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Clifford Chance added two partners from Covington to the firm’s funds and investment management team in New York: William Sturman, who formerly was chair of Covington’s private funds and investments practice, and Kelly Labritz. (Clifford Chance)
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Kramer Levin brought on Daniel Zimmerman as a New York-based corporate partner. Zimmerman joins the firm from Akin Gump. (Kramer Levin)
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Steptoe & Johnson said government contracts partner Amba Datta joined the firm’s Washington, D.C., office from Kelley Drye. (Steptoe)
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Orrick brought on Ben Au from Durie Tangri as a new technology litigation partner in Santa Monica. (Orrick)
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King & Spalding said Mary Liz Brady joined the firm as a Chicago-based partner focused on corporate, finance and investments. Brady formerly practiced at Kirkland. (King & Spalding)
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The rise of non-fungible tokens (NFTs) has come with myriad questions involving the scope of intellectual property rights. Does the purchase of an NFT mean the buyer obtains the copyright associated with it? The answer is: Not necessarily, writes Sharon Urias of Greenspoon Marder. Although the purchaser has acquired the right to display the work, and to resell it, ownership of the copyright is not automatically conveyed, Urias writes. How NFT buyers and sellers can protect themselves.
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