Good morning. The confirmation of Georgetown Law’s Alvaro Bedoya to serve on the Federal Trade Commission gives Democrat-appointed nominees a majority, ending months of tie voting. In court, Apple defeated a new trial bid in a long-running processor patent case, and Arkansas is suing over the soaring price of insulin drugs. A Biden nominee for the 7th Circuit defended his early-pandemic ruling that limited in-person gatherings, and find out why law deans are fuming over July’s bar exam in Washington, D.C. Let’s dive in.
Our colleague Dan Brillman is co-writing The Daily Docket while Diana Novak Jones is on parental leave. We’ll return to your inboxes on Monday, May 16, after a brief hiatus in recognition of mental health awareness month. Were you forwarded this email? Subscribe here.
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A key bill that would restore the power of the Federal Trade Commission to go after the ill-gotten gains of deceptive companies has moved from the Senate Commerce Committee to the floor in a party-line 14-14 vote. The legislative fix followed a 9-0 Supreme Court ruling last year that said the agency had overstepped its authority in seeking court orders to make fraudsters return money.
In the five years before the Supreme Court decision, the FTC returned $11.2 billion to consumers via its disgorgement powers, according to Senate Commerce Chair Maria Cantwell's office. The U.S. Chamber of Commerce raised its concerns about the pending legislation in a letter this week to lawmakers, saying it “would grant entirely new and sweeping enforcement powers” to the agency.
The movement of the bill comes as the Senate confirmed privacy expert and Georgetown Law Center professor Alvaro Bedoya as commissioner to the agency on a 51-50 party-line vote, with Vice President Kamala Harris breaking the tie. Bedoya’s confirmation gives Democrats a 3-2 majority among commissioners on the agency. For months until now, Democratic members under Chair Lina Khan were stymied by a tie 2-2 vote that prohibited the agency from moving forward on certain matters.
Bedoya’s vote can help the agency investigate oil companies that Senate Democrats say are gouging consumers with high gasoline prices, Senate Democratic Leader Chuck Schumer has said. In a statement, Schumer said the FTC now will be "empowered to drive full steam" in enforcement actions.
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7th Circuit nominee John Lee, now a federal judge in Chicago, faced Republicans’ questions at his confirmation hearing about a ruling he issued early in the pandemic that limited in-person church services. Lee told the Senate Judiciary Committee that the right to freedom of religion was among the constitutional "bedrocks." The White House said Lee, if he is confirmed, would be the first Asian American to serve on the Chicago-based 7th Circuit. (Reuters)
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U.S. District Judge Carlton Reeves in Mississippi would become the first Black person to chair the U.S. Sentencing Commission, if confirmed by the Senate. Reeves was among a bipartisan slate of nominees the Biden administration put forth this week, restoring hope among criminal justice reform advocates that the commission could soon issue new guidelines to help ease prison sentences they view as excessive. (Reuters)
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New data shows that nearly half of the top lawyers appointed at the 500 biggest companies in the U.S. in 2021 were female, a sign of some diversity progress across large corporate legal departments. The report from executive search and leadership advisory firm Russell Reynolds Associates said that 59 Fortune 500 companies in total named new general counsel last year — and 29 of those were women. (Reuters)
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That’s the number of available spots for the Washington, D.C., July bar exam, about a third fewer than the number who took the past two July tests. The D.C. Court of Appeals, which oversees attorney licensing in the nation’s capital, is giving priority to first-time testers from the District’s six law schools, plus the nearby George Mason University Antonin Scalia Law School. The reduced-seating plan, based on the venue for the exam, has riled law deans from across the country. More than 100 signed a May 4 letter urging the court to find a way to increase capacity. Here’s why the deans are upset.
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"We haven't seen any documents that have Post-its on them."
—Andrew Amer, special counsel at the New York attorney general's office, speaking in court about former Republican President Donald Trump’s apparent use of square sticky notes to communicate with employees. Amer’s office is leading a civil probe into Trump’s businesses, and a judge said at the hearing that Trump must pay a $110,000 fine and meet other conditions to purge a contempt order over his failure to comply with a state subpoena for records. A lawyer for Trump, Alina Habba, said that if there were Post-its on any documents, they would have been handed over. Read more about the latest court hearing.
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Nonprofit Upsolve will ask U.S. District Judge Paul Crotty in Manhattan federal court to stop the New York attorney general’s office from enforcing unauthorized practice of law rules against a free legal advice program that the organization wants to start to help low-income New Yorkers facing debt collection lawsuits. Several civil rights groups and law professors submitted briefs supporting Upsolve’s bid to train non-lawyers as part of the planned program. Other groups in New York oppose Upsolve’s efforts, arguing a "wide array" of services already exist. Upsolve is represented by a team from Weil Gotshal.
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Roslynn Mauskopf, director of the administrative office of the U.S. courts, and 7th Circuit Judge Amy St. Eve will testify before the U.S. House appropriations committee about the federal judiciary’s proposed 2023 fiscal year budget request. The judiciary, among other things, is requesting $785.6 million for court security, an increase of $80.8 million over the 2022 amount. The administrative office said the boost was sought to fund areas including security systems and equipment needs. St. Eve chairs the U.S. judicial conference’s budget committee. Watch the appropriations hearing here.
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Former New York state lieutenant governor Brian Benjamin is expected to appear in Manhattan federal court for a status conference following his arrest on bribery charges last month. Prosecutors have alleged he directed state funds toward a real estate developer in exchange for campaign contributions. Benjamin, who has pleaded not guilty, resigned after his arrest. He is represented by Kramer Levin partner and litigation practice chair Barry Berke.
Court calendars are subject to last-minute docket changes.
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Welcome back to the Penalty Box, where The Daily Docket highlights new and notable attorney and judicial discipline orders, hearings, articles and more. We’re looking out for cases and issues of importance, so please do share any observations with us. |
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Top St. Louis prosecutor Kim Gardner should receive a public reprimand over violations of professional conduct rules during her office's investigation of ex-Missouri Governor Eric Greitens, a three-member ethics panel recommended. Greitens, a Republican, was charged by Gardner, the Democratic St. Louis Circuit attorney, in 2018 after he allegedly used an intimate photo to blackmail an unnamed woman with whom he'd been having an affair. The invasion of privacy charges were dropped and Greitens resigned. The ethics panel said Gardner failed to turn over documents related to an interview with Greitens' alleged victim. She also failed to update court filings she knew to contain incorrect information, the panel said. Gardner admitted to her misconduct during an April 11 hearing. Gardner's lawyers did not immediately return requests for comment. The Missouri Supreme Court will weigh the discipline recommendation.
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Lawyers for voting-machine provider Dominion Voting Systems and Facebook this week asked the 10th Circuit to uphold sanctions against two lawyers who unsuccessfully sued the companies and others in a bid to contest the outcome of the 2020 presidential election. The companies and the Center for Tech and Civic Life, also a defendant, submitted a joint filing to the Denver-based court that argued a federal judge was justified in ordering the plaintiffs’ lawyers to pay $187,000 in legal fees as a sanction. “Although the imposition of sanctions is an extraordinary measure, it is warranted — indeed, essential — in this case,” Joshua Matz of Kaplan Hecker & Fink, representing the civic tech group, wrote in the joint filing. The two plaintiffs’ lawyers, Gary Fielder and Ernest Walker, last month said in a brief in their appeal that the sanctions order used “a censorious, accusatory tone, contriving improper conduct where there is none.”
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New York real estate attorney Mitchell Kossoff was sentenced in Manhattan state court last week to between 4.5 and 13.5 years in prison after pleading guilty to fraud and grand larceny. Prosecutors had accused him of emptying more than $14.6 million out of accounts holding clients' money, Kossoff's lawyer, Walter Mack of Doar Rieck Kaley & Mack, called the sentence "just" and said Kossoff told the court he will dedicate the rest of his life to remedying damage caused by his behavior.
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The University of Wisconsin's patent-licensing arm, represented by Morgan Chu of Irell & Manella, lost a bid for a new trial against Apple after the Supreme Court wiped out an earlier $506 million award it won against the iPhone maker. A Madison, Wisconsin, federal court rejected its request to reopen the case based on a new theory of how Apple, represented by William Lee of WilmerHale, allegedly infringed a computer-processing patent. (Reuters)
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The 5th Circuit allowed a Texas law prohibiting large social media platforms from banning users based on their political views to go into effect while the state appeals a lower court order that had blocked it. Circuit Judges Edith Jones, Leslie Southwick and Andrew Oldham said the order was not unanimous but the panel did not explain its vote. (Reuters)
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The 3rd Circuit ruled that payments individuals owe to the IRS for failing to obtain health insurance under the Affordable Care Act should be given priority in bankruptcy, affirming a lower court. A Pennsylvania couple argued that the money they owe for not obtaining health insurance is a penalty, not a tax, and not entitled to be paid before their other debts. (Reuters)
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Arkansas' attorney general accused drugmakers and pharmacy benefit managers of colluding to drive up the price of insulin drugs, the latest in a series of lawsuits to take aim at skyrocketing insulin costs. The lawsuit, filed in Arkansas state court, targets Eli Lilly, Novo Nordisk and Sanofi; the companies did not immediately comment. Similar lawsuits brought by the state of Minnesota, city of Miami and groups of drug purchasers are already pending. (Reuters)
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Two owners of a Phoenix, Arizona-based telemedicine company admitted in New Jersey federal court to taking part in a nationwide healthcare fraud scheme involving kickbacks to doctors that resulted in $64 million in false claims being submitted to government insurance programs. (Reuters)
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At the urging of the Biden administration and the nonprofit Taxpayers Against Fraud, the full 4th Circuit agreed to rehear a case alleging that Forrest Labs, now owned by Allergan, defrauded the federal government out of $680 million by deliberately reporting inaccurate drug-pricing data to Medicaid. A federal judge in Baltimore dismissed the lawsuit in 2020. The 4th Circuit affirmed in January in a 2-1 split. (Reuters)
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Cryptocurrency exchange Binance named Joshua Eaton, a former high-level prosecutor in the San Francisco U.S. attorney’s office, as deputy general counsel. Eaton will manage the company’s legal affairs, leading the support for global compliance, investigations and law enforcement coordination. (Reuters)
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King & Spalding added three partners to its Miami office from Akerman: Brian Miller, Samantha Kavanaugh and Ross Linzer. They joined the firm’s trial and global disputes practice. (Reuters)
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Dentons said Christopher Kula joined the firm as a New York-based corporate partner. He earlier practiced at Cole Schotz. (Dentons)
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Jackson Lewis added Jonathan Cavalier as a labor and employment principal based in the firm’s Philadelphia office. He joins the firm from Cozen O’Connor. (Jackson Lewis)
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Nelson Mullins said corporate and securities partner Eric Graben joined the firm’s Greenville, S.C. office. He arrives at the firm from Wyche Law Firm. (Nelson Mullins)
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