Good morning. Trump’s lawyers and the DOJ have until Friday to put together a roster of potential special masters in the Mar-a-Lago case, but finding the right people for the list won’t be easy. Plus, a lawsuit accusing Proskauer of facilitating an illegal tax shelter gets revived, and the Conference of Chief Justices weighs in on a U.S. Supreme Court case over election laws. Now, let’s get to the news!
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REUTERS/David Dee Delgado
Who will be appointed special master to review the records the FBI seized from Donald Trump’s Mar-a-Lago estate? Finding people who have the necessary experience and security clearances to handle the classified documents — and the fortitude to enter a political firestorm — won’t be easy, legal experts told Sarah N. Lynch, Jacqueline Thomsen and Karen Freifeld.
Trump’s lawyers and the DOJ have until Friday to give U.S. District Judge Aileen Cannon a list of potential candidates. Kenneth Feinberg, a special master for the 9/11 Victims Compensation Fund, predicted that “there's only a relatively small number of individuals who would satisfy the requirements of the job.” Feinberg told Reuters: "It would have to be somebody willing to take on the hurricane.”
Cannon on Monday ruled that a special master should review the records seized from Trump's Palm Beach home to keep prosecutors from seeing some material either due to attorney-client privilege or executive privilege. Whoever is picked will likely need to have a top-level security clearance because more than 100 of the 11,000-plus documents are marked as top secret, secret or confidential. "Appointing a special master I think may be harder than people think," said John Bolton, a former Trump-era national security adviser who previously also served at the Justice Department.
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Proskauer Rose lost its bid to fend off a legal malpractice case alleging it helped to promote an illegal tax shelter, as the Georgia Supreme Court revived a lawsuit against the firm. The state justices reversed a lower court’s ruling that said claims were time-barred. Several major U.S. firms in Georgia filed a brief supporting Proskauer in the litigation. (Reuters)
- The U.S. Senate confirmed U.S. District Judge John Lee to be the first Asian-American judge to serve on the Chicago-based 7th Circuit, as Democrats, fresh from their August recess, move to ramp up confirmations of President Joe Biden's judicial nominees. (Reuters)
Senate Republicans questioned Delaware Supreme Court Justice Tamika Montgomery-Reeves, the first Black woman to serve on Delaware's top court, about a proposal to alter the state's bar exam to reduce racial bias in the legal profession during a hearing to consider her nomination to the 3rd Circuit. (Reuters)
Wright Close & Barger brought on Eva Guzman, a former Texas Supreme Court judge who lost the Republican primary for attorney general. Guzman will be a partner in the trial firm’s appellate practice. (Reuters)
That’s the number of state securities regulators investigating New Jersey-based cryptocurrency lender Celsius Network for potential violations of unregistered securities activity, mismanagement, securities fraud and market manipulation, according to U.S. bankruptcy court filings from Texas and Vermont agencies. Securities boards from those states on Wednesday pushed for greater transparency in the bankruptcy of Celsius, joining the U.S. Justice Department’s call for a court-appointed examiner to ensure Celsius is providing creditors with accurate information. Celsius, which filed for bankruptcy in July, did not respond to a request for comment. A hearing is scheduled for Sept. 14 on the DOJ's request for an examiner.
It is a rare and wondrous thing for a federal judge to admit that he could use some help interpreting complicated precedent. So cheers are in order for Judge Edward Davila of San Jose, California, who is presiding over three big class actions in which consumers allege that Apple, Google and Facebook parent Meta Platforms promote illegal online gambling through so-called social casino apps. Davila ruled on Sept. 2 that Section 230 of the Communications Decency Act precludes two plaintiffs’ theories of liability, but not consumer allegations that the platforms enabled the sale of virtual chips. The judge also said, however, that reasonable minds might reach different conclusions — so he certified the decision for appeal to the 9th Circuit, sua sponte. Alison Frankel says that makes him a winner in her book, whatever the outcome of the prospective appeal.
"Courts do not cease to act judicially when they interpret and apply general constitutional provisions such as ‘ ‘free’ or ‘fair’ elections’ or ‘equal protection.’"
—The Conference of Chief Justices, a group representing the top judges in all 50 states, which submitted a brief to the U.S. Supreme Court urging it not to shield state legislatures’ actions involving federal elections from state courts’ scrutiny. The brief, authored by Carter Phillips of Sidley Austin, comes in a case involving a map drawn by the Republican-led North Carolina legislature of the state's U.S. House of Representatives districts. The state's top court struck down the map, concluding that the districts were crafted in a manner intentionally biased against Democrats. The case will be heard next term.
Steve Bannon, a onetime top strategist for former U.S. President Donald Trump, is expected to surrender to New York authorities today to face a new indictment. The documents are sealed, but a person familiar with the matter told Reuters the case may stem from an alleged scheme to defraud donors to a fund to build a border wall. Bannon faced an indictment in federal court over similar allegations in 2020 but Trump pardoned him in the final hours of his presidency.
Trial resumes in New York state court in bond insurer Ambac Financial Group’s bid to recoup more than $2 billion in insurance claims it paid to cover investor losses on securities backed by 375,000 home loans from Bank of America's Countrywide unit. An attorney for Bank of America, Enu Mainigi of Williams & Connolly, said in court that Ambac cannot prove its case on evidence that BofA was a "bad actor" before the 2008 financial crisis. Michael Carlinsky of Quinn Emanuel is representing Ambac.
The full U.S. Senate is scheduled to vote on Butler Snow partner Andre Mathis’ nomination to the 6th Circuit. Mathis was the first Biden appellate court nominee to go before the Senate Judiciary Committee without the support of his home states' senators, whose backing historically would have been needed for him to even be considered.
Apple will urge the Federal Circuit to throw out VirnetX Holding Corp's $502.8 million win on claims that Apple's iPads and iPhones infringe VirnetX patents covering virtual private networks. Apple argues that the U.S. Patent and Trademark Office found the relevant parts of the patents invalid between the time of the initial trial and a retrial on damages in East Texas. VirnetX is represented by Jeff Lamken of MoloLamken, while Apple is represented by Bill Lee of Wilmer Hale.
Court calendars are subject to last-minute docket changes.
A 1931 Michigan law banning abortion with no exceptions for rape or incest violates the state's constitution, Judge Elizabeth Gleicher of the Michigan Court of Claims ruled. The decision is a victory for providers including a Planned Parenthood affiliate, which had sued to block the law. The Michigan Supreme Court faces a Friday deadline to decide whether an amendment to legalize abortion statewide will appear on ballots in November. (Reuters)
Skadden Arps is representing investment firm Metacapital Management in a lawsuit against Facebook parent Meta Platforms in Manhattan federal court alleging use of the Meta name to provide financial services would cause customer confusion and violate its trademarks. Metacapital asked the court for damages of at least $60 million, the same amount Meta Platforms paid last year to acquire the trademark assets of regional bank Meta Financial Group. (Reuters)
Elon Musk can use a whistleblower's claims in his case against Twitter, but the billionaire cannot delay the trial over his attempt to walk away from his $44 billion deal for the social media company, Chancellor Kathaleen McCormick of Delaware's Court of Chancery ruled. (Reuters)
Johnson & Johnson defeated a bid by a group of employees to revive their proposed class action claiming the company's attempts to conceal allegations that its talc-based baby powder contained asbestos caused an employee stock plan to plummet. A unanimous 3rd Circuit panel said it would have been reasonable for J&J to conclude that disclosing the allegations earlier would do more harm than good. J&J, which is facing thousands of lawsuits over the talc products, has denied wrongdoing and says its talc products are safe. (Reuters)
A North Carolina jury said R.J. Reynolds must pay tobacco giant Altria more than $95 million, finding e-cigarettes from RJR's top-selling Vuse line infringed three Altria patents. Altria and its attorneys Elizabeth Weiswasser of Weil Gotshal and Robert Van Arnam of Williams Mullen accused RJR of violating patents related to vaping devices with pods for storing and heating liquid nicotine, and requested over 5% of RJR's royalties on Vuse Alto sales. (Reuters)
Holland & Knight hired partners Keith Carroll, Anthony Mulrain and O'Kelly McWilliams from Mintz Levin’s sports and entertainment practice. (Reuters)
Hunton Andrews Kurth added Sarah Pearce as a privacy and cybersecurity partner based in the firm’s London office. Pearce previously led Paul Hastings’ EU and UK privacy and cyber practice. (Reuters)
Sidley hired Lara Shalov Mehraban as a New York-based securities enforcement and regulatory partner. She previously served as acting director of the SEC’s New York regional office. (Sidley)
McGuireWoods added two pharmaceutical patent partners: Michael Nutter, based in Chicago, and Merritt Westcott in Houston. Nutter will lead McGuireWoods’ pharmaceutical and life sciences patent litigation group. Both lawyers arrived at the firm from Winston. (McGuireWoods)
- Cooley hired Washington, D.C.-based antitrust partner Kathy O’Neill from the U.S. Justice Department, where she was senior director of investigations and litigation. (Cooley)
Davis Wright brought on Thomas Schroeder as a partner in the firm’s tax-exempt organizations practice. He joins the firm from the general counsel’s office of the University of California. (Davis Wright)
Axinn added partner James Attridge to the firm’s antitrust group in Washington, D.C. Attridge recently served as chief of staff in the U.S. Justice Department. (Axinn)
Megan Nishikawa and Amber Trincado jumped to Hogan Lovells, where they’ll be commercial litigation partners in the firm’s San Francisco office. They were previously at King & Spalding. (Hogan Lovells)
Correction: The quote of the day in Wednesday’s Daily Docket contained an error. It should have read: “Mr. Griffin became constitutionally disqualified from federal and state office and forfeited his current office as an Otero County Commissioner effective January 6, 2021.” Also, the last name of new DLA Piper partner Sharon Lindan Mayl was misidentified in one instance in the Industry Moves section.
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