Good morning. In a U.S. appeals court first, a panel says COVID isn’t a “natural disaster” that allows employers to bypass advance notice of mass layoffs. Business groups had warned a ruling for workers could open a door to more lawsuits. On Capitol Hill today, O’Melveny’s Greg Jacob, former counsel to former VP Mike Pence, will testify with retired U.S. appeals judge J. Michael Luttig at the Jan. 6 congressional hearing. Plus: Elon Musk is taking his beef with the SEC to the 2nd Circuit, and there’s a new D.C. Circuit nominee. It’s a special Thursday in Daily Docket land: Welcome back, Diana!
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The 5th Circuit became the first federal court to weigh in on whether the COVID-19 pandemic qualifies as a natural disaster that exempts employers from giving advance notice of mass layoffs.
The appellate court said the WARN Act, which requires businesses to give workers a 60-day heads up about layoffs unless they are spurred by events like earthquakes and floods, doesn’t provide an exception for pandemics. It’s an issue that has divided federal judges – the ruling reversed the lower court’s holding that the pandemic does qualify under the act’s exemption because it was not caused by humans.
"Congress knew how to, and could have, included terms like disease, pandemic, or virus in the statutory language of the WARN Act," Circuit Judge Carl Stewart wrote in the decision. "That it chose not to justifies the inference that those terms were deliberately excluded."
Read more about the ruling.
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Westlaw Edge is the standard for legal research, bringing together a legacy of quality and accurate content with the latest advancements in technology. Experience for yourself the most intelligent legal research service ever. |
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Imagine what Westlaw Edge can do for you
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Westlaw Edge is the standard for legal research, bringing together a legacy of quality and accurate content with the latest advancements in technology. Experience for yourself the most intelligent legal research service ever. |
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Former O’Melveny partner Bradley Garcia is the Biden White House’s fourth nominee to the D.C. Circuit, and he would become the court’s first Latino judge to serve there. Garcia was named as part of a new round of nominees, including President Joe Biden’s first pick for the 5th Circuit: U.S. Magistrate Judge Dana Douglas, a former partner at Liskow & Lewis. Douglas would be the first woman of color on the conservative New Orleans-based court. (Reuters)
- Gibson Dunn alum Stuart Delery has a new post at the White House, serving as the top lawyer as Dana Remus heads out. Remus was Biden’s first White House counsel, and Delery has served under her as a deputy counsel since the start of the Biden administration. Delery, a top Obama-era DOJ lawyer, will be the first openly gay man to hold the counsel post. (Reuters)
- University of Pittsburgh Law is working to bring six Ukrainian lawyers to the United States to spend a year studying and doing pro bono work related to their home country. The initiative is part of the school's Ukrainian Legal Assistance Project. (Reuters)
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That’s how much a creditor of bankrupt Brazos Electric is seeking from the Texas power cooperative in a contract dispute, but the judge overseeing the restructuring rejected the creditor’s request for arbitration. Brazos, which filed for bankruptcy after a severe winter storm left millions of Texans without power, is fending off a claim from creditor Sandy Creek Energy Associates over Brazos’ decision to terminate a power purchase contract at a coal-fired power plant co-owned by both companies. Sandy Creek sought to send the fight to arbitration, but U.S. Bankruptcy Judge David Jones in Houston said it should stay in bankruptcy court. Read more about Jones’ ruling.
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The en banc 4th Circuit ruled Tuesday that a North Carolina charter school’s skirts-only dress code for girls is unconstitutional. The complex legal question arising from the 10-6 decision is whether the charter school is a state actor subject to an Equal Protection challenge. It’s a good bet that question is going to be further hashed out at the U.S. Supreme Court. But in the meantime, writes Alison Frankel, there’s another, more immediate question: Will the court’s ruling squelch choices for parents and students at a time when public education is in turmoil? Three 4th Circuit dissenters said yes — but read on for the resounding response of the majority.
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Video: Could lawsuit against Binance send crypto back to its decentralized roots? |
A lawsuit against Binance over the collapse of stablecoin TerraUSD has the potential to change the way market participants engage with cryptocurrency platforms. Law professors Carol Goforth of the University of Arkansas, V. Gerard Comizio of Washington College of Law at American University and attorney Daniel Garrie, a co-founder of Law & Forensics, discuss the issues with Reuters video journalist Alex Cohen. Watch the video.
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"An attorney's speech rights within the confines of litigation are not absolute."
—Texas disciplinary attorneys Kristin Brady and Rachel Craig, who urged Judge Tonya Parker in Dallas not to toss to the state bar’s ethics complaint against pro-Trump lawyer Sidney Powell over her role in litigation contesting the 2020 presidential election. Powell has asked the court to throw out the bar’s case, calling its claims baseless and arguing that her right to file the lawsuits is “unfettered.” Read more about the bar’s case against Powell.
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O’Melveny partner Greg Jacob, who served as counsel to former Vice President Mike Pence, is scheduled to testify to the U.S. congressional committee investigating the Jan. 6, 2021, attack on the U.S. Capitol by supporters of Donald Trump. The committee said today’s hearing, which also includes retired federal appeals judge J. Michael Luttig, will illustrate how Trump put pressure on Pence to refuse to count electoral votes showing Biden had won the race. The committee postponed a Wednesday hearing set to focus on Trump's efforts to assemble a team at the Justice Department to promote his false voter fraud claims. Jeffrey Rosen, a former acting attorney general, is among those scheduled to testify at an upcoming hearing.
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U.S. District Judge James Selna in Santa Ana, California, has scheduled a plea hearing for Michael Avenatti, the twice-convicted lawyer who represented porn actress Stormy Daniels in her legal battles against former President Donald Trump. Avenatti on Sunday said he would plead guilty to an unspecified number of the 36 criminal charges he faces in California. Avenatti said he wanted to plead guilty "to be accountable; accept responsibility; avoid his former clients being further burdened; save the court and the government significant resources; and save his family further embarrassment." He is serving five years in prison for defrauding Daniels and trying to extort Nike.
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A San Jose federal judge will hear Apple's request to block its former engineer Ricky Wen and "any other person or entity" acting with him from taking its trade secrets to Rivos, a startup that works on competing "system-on-chip" technology. Apple’s Morrison & Foerster lawyers sued Wen, Rivos and another former engineer, claiming stolen trade secrets related to Apple's computer chips last month. Wen and Rivos, represented by attorneys from Quinn Emanuel, have denied the allegations.
Court calendars are subject to last-minute docket changes.
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Reporter's notebook: State bars question lawyers in pro-Trump election cases |
Reuters legal reporter Jacqueline Thomsen on the role attorney discipline regulators are playing in the aftermath of pro-Trump lawyers’ failed legal bids over the 2020 election
The Jan. 6 congressional hearings are putting a fresh spotlight on some of the lawyers who backed the former president’s election conspiracy claims. But disciplinary actions are already well underway against some of them, and others may soon follow. My colleague Sarah N. Lynch reports that former Justice Department official Jeffrey Bossert Clark is under investigation in D.C. following his efforts to get DOJ leaders to sign off on a plan to certify "alternate" slates of Trump electors.
Rudy Giuliani was the first to see his New York law license suspended a year ago, and he was recently hit with new ethics charges in D.C. over his conduct in a Pennsylvania election challenge — the only post-election litigation he officially joined. Lawyer Sidney Powell will argue to a Texas court next week to dismiss disciplinary charges against her. Texas Attorney General Ken Paxton is also the subject of a recent complaint by disciplinary officials in the state over his longshot election lawsuit at the U.S. Supreme Court.
The disciplinary process can be slow and varies in different states. It's also a pretty secretive process, and officials typically won't reveal whether an attorney is under investigation unless and until they bring charges.
But the clock is ticking. The midterm elections are coming up, and 2024 is not far behind. Sources tell me they expect the elections to bring fresh legal challenges, and that it could become the norm for future election cycles. Some of the 2020 figures are already stepping into the arena: Doug Mastriano, the Republican candidate in the Pennsylvania governor's race, this week hired Trump campaign lawyer Jenna Ellis as a senior legal adviser. Ellis, who helped amplify Trump’s false election fraud claims, is the subject of at least two bar complaints in Colorado.
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U.S. District Judge Paul Crotty in Manhattan said the owner of an oil tanker must pay the United States $44.6 million over its role in a 2017 collision between the tanker and destroyer the U.S.S. John S. McCain in southeast Asia that killed 10 sailors and injured dozens more. The tanker owner, Energetic Tank, represented by a Blank Rome team, had sought to hold the U.S. liable for the collision, which damaged both ships. (Reuters)
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Elon Musk’s Quinn Emanuel legal team appealed a judge's refusal to end his 2018 agreement with the SEC requiring a Tesla lawyer to vet some of his posts on Twitter. Musk will ask the 2nd Circuit to overturn the decision by U.S. District Judge Lewis Liman allowing his consent decree with the SEC to stand. (Reuters)
- A unique California law allowing workers to sue their employers in the state's name does not permit them to circumvent agreements to bring legal disputes in individual arbitration rather than court, the U.S. Supreme Court said in an 8-1 ruling for Kirkland client Viking River Cruises. The decision is likely to stem a flood of lawsuits accusing companies of widespread wage law violations. (Reuters)
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Philip Morris International was awarded $10.7 million after a federal jury in Alexandria, Virginia, found rival R.J. Reynolds Vapor's Vuse e-cigarettes violate its patent rights. The case is part of multi-front patent dispute between Philip Morris and RJR parent company British American Tobacco. (Reuters)
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McDermott said litigators Joel Haims and Jonathan Henry joined the firm’s office in New York and Washington, D.C., respectively. Haims formerly practiced at Morrison & Foerster, and Henry earlier worked at King & Spalding. (McDermott)
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Perkins Coie added Masahiro Noda as a San Diego-based intellectual property partner. Noda earlier practiced at Greenberg Traurig. (Perkins Coie)
- Perkins Coie brought on Patrick Anding as a Los Angeles partner focused on emerging companies and venture capital. He arrives at the firm from DLA Piper. (Perkins Coie)
- Alston & Bird said partner Joseph McKernan joined the firm’s New York office. He earlier practiced at Hodgson Russ. (Alston)
- Venable added Jeffery Meyer as a partner in the labor and employment practice group in the New York office. He formerly was at Nixon Peabody. (Venable)
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Kathi Vidal, confirmed in April as the U.S. Patent and Trademark Office director, has implemented a series of policy changes to increase transparency at the Patent Trial and Appeal Board, write David McCombs, Eugene Goryunov and Jonathan Bowser of Haynes and Boone. Vidal announced a new, interim process to review PTAB decisions that’s modeled after how the Federal Circuit shares precedential decisions. The new process deviates from prior internal review procedures.
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