Good morning. The U.S. Justice Department is taking its Mar-a-Lago document case to the 11th Circuit to fight a judge’s order calling for a special master in the investigation against former President Donald Trump. Even so, DOJ and Trump lawyers today will offer their suggestions on who should serve as the special master to sift through the docs. Plus: the U.S. Senate is pressing onward with judicial confirmations; Chief Justice Roberts is speaking today in Colorado; and abortion rights will be on the ballot this November in Michigan. Happy Friday to all. Let’s jump in.
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Attorneys for former President Donald Trump and the Department of Justice face a deadline today to submit names to serve as a potential special master in the Mar-a-Lago case, but the DOJ is also pushing back on the order as it is written, reports Sarah N. Lynch.
While the government filed a notice of appeal, saying it will challenge the order before the 11th Circuit, it also asked U.S. District Judge Aileen Cannon to stay the part of her ruling that blocks prosecutors from reviewing the Mar-a-Lago documents as part of their criminal investigation. The motion asked Cannon to lift the ban with respect to just over 100 records marked classified.
Although she stopped the criminal investigators’ review of the documents, Cannon said she would allow the intelligence community to continue its work to determine the risks posed by the documents’ purported mishandling. That directive is confusing, the DOJ said.
“Uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community, in consultation with DOJ, to pause temporarily this critically important work,” the DOJ wrote. If she doesn’t rule by Sept. 15 on the stay, the government said it will go to the 11th Circuit.
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Tennessee lawyer Andre Mathis was confirmed in the U.S. Senate to serve on the 6th Circuit over the objections of his state's two Republican senators, whose support historically would have been needed but no longer is required. The Senate voted 48-47 to approve the Butler Snow partner, the second judicial confirmation this week as Democrats move quickly to vote on pending court nominees. (Reuters)
Civil rights litigator Pamela Karlan returned to Stanford Law from a leadership post at the U.S. Justice Department’s civil rights division, where she oversaw appellate work. Karlan will resume co-directing the school’s U.S. Supreme Court litigation clinic with Jeffrey Fisher. (Reuters)
Appellate vet Kannon Shanmugam and other Paul Weiss lawyers are representing plaintiffs suing the U.S. Treasury Department over its sanctions barring Americans from the virtual currency mixer Tornado Cash. The lawsuit, which is being funded by the crypto exchange Coinbase, was filed in Waco, Texas, federal court. (Reuters)
That’s the number of law schools named after Philadelphia attorney Thomas Kline, after Duquesne University, the recipient of a donation from the longtime personal injury lawyer, said it would rebrand as the Thomas R. Kline School of Law of Duquesne University. The Pittsburgh university said Kline’s $50 million gift was the single-largest gift in its history. Kline previously donated $50 million to Drexel University’s law school, which is formally Thomas R. Kline School of Law. Kline, a 1978 graduate from Duquesne law, co-founded Kline & Specter.
The 2nd Circuit this week cemented its split with the 11th Circuit on an issue that crops up repeatedly in class action litigation: Can courts award incentive payments to plaintiffs who serve as class representatives? The 11th Circuit said in a 2020 decision that such payments are barred by 140-year-old Supreme Court rulings. Last month, it refused to reconsider that decision. But the 2nd Circuit just held otherwise, in a class action over Navient’s alleged failure to advise public service employees about student loan forgiveness programs. Alison Frankel has the details, including confirmation that the 11th Circuit decision will be appealed to the Supreme Court.
"I'm pretty sure this dispute will never end between these two companies."
– Chief U.S. Circuit Judge Kimberly Moore of the Federal Circuit, who commented during oral arguments on the longevity of the fight between Apple and patent licensing company VirnetX. The appellate panel heard Apple's arguments to throw out a $502 million jury verdict VirnetX won on claims Apple infringed its patents on VPN technology. The court also heard arguments in VirnetX's appeal of a U.S. Patent Office tribunal decision to cancel its patents, which also would negate the award if it stands. The 12-year fight has included five trials and three trips to the appeals court.
Kellye SoRelle, a top lawyer for the Oath Keepers militia group, has her arraignment in Washington, D.C., federal court on charges of conspiracy and obstruction in connection with the Jan. 6, 2021, attack on the U.S. Capitol. SoRelle will appear before U.S. District Judge Amit Mehta. She was released without bond after her arrest last week and an initial court appearance in Austin, Texas.
- U.S. Supreme Court Chief Justice John Roberts is scheduled to speak at the 10th Circuit’s Bench and Bar Conference in Colorado Springs, Colorado. The 10th Circuit’s Chief Judge Timothy Tymkovich and Circuit Judge Jerome Holmes will interview Roberts.
The 2nd Circuit hears arguments as biotech company Amyris attempts to arbitrate a $881 million intellectual property lawsuit filed by its former business partner LAVVAN over a soured business deal to make synthetic cannabinoids. LAVVAN, represented by Jason Cyrulnik of Cyrulnik Fattaruso, sued Amyris to block the company from using its patents because LAVVAN has a worldwide license to them. Amyris and its team from Gibson Dunn say any dispute between the parties belongs before an arbitrator.
Court calendars are subject to last-minute docket changes.
What to catch up on this weekend
Michigan voters will decide whether to amend their state constitution to protect abortion rights this November, the state Supreme Court ruled. The court’s order was a win for abortion rights advocates who petitioned to put the amendment on the ballot. (Reuters)
U.S. District Judge Edgardo Ramos in Manhattan said he will allow jurors in the fraud trial of Nikola founder Trevor Milton to watch a video that prosecutors said shows a truck appearing to drive on its own power when it was actually rolling down a hill. Milton, who is accused of misleading investors in the electric- and hydrogen-powered automaker's progress in developing its technology, goes on trial next week. (Reuters)
Angelina Jolie's former investment company accused Brad Pitt of waging a "vindictive war" in a countersuit it filed against her ex-husband in a battle over a French vineyard that the actors once shared. Nouvel LLC, Jolie's former investment company that owns a stake in the Château Miraval vineyard said in its countersuit filed that Pitt had seized control of the winery in southeastern France. (Reuters)
Citigroup’s lawyers at Hogan Lovells won an appeal at the 2nd Circuit in the bank's effort to recoup about $500 million of its own money that it accidentally wired to Revlon lenders. The panel judges said the lenders had not been entitled to repayment, and were on notice that the wiring was a mistake. Lawyers from Quinn Emanuel argued for Revlon. (Reuters)
The Boy Scouts of America secured approval of a $2.46 billion reorganization plan from U.S. Bankruptcy Judge Laurie Selber Silverstein in Delaware that will allow the organization to exit Chapter 11 and settle decades of claims by more than 80,000 men who alleged they were abused as children by troop leaders. (Reuters)
Mutual insurance company Acuity does not have to cover former drug distribution company Masters Pharmaceutical’s legal costs in 22 lawsuits by cities and counties hard-hit by the opioid epidemic, the Ohio Supreme Court said. The court reversed an appellate court and held that Acuity had no duty to defend Masters because the localities were suing for their own economic losses, not for “damages because of bodily injury” as defined in Acuity’s insurance policies. (Reuters)
O’Melveny added Washington, D.C.-based partner Andrew Young from DLA Piper. Young joined the firm’s project development and energy industry group. (O’Melveny)
Cozen O’Connor hired partner Micah Myers in the firm’s Washington, D.C., office. Myers previously served as a senior associate general counsel at the Office of the U.S. Trade Representative. (Cozen)
Crowell said Maria Alejandra del-Cerro joined the firm’s international trade and government contracts groups as a partner in Washington, D.C. She arrives from the U.S. State Department, where she was a regulatory and multilateral affairs analyst. (Crowell)
Alston & Bird brought on consumer finance partner Aldys London in the firm’s Washington, D.C., office. London previously was at Weiner Brodsky Kider. (Alston)
K&L Gates added Elio Marena as a Milan-based corporate partner. He previously practiced at Colonna Caramanti with Marena. (K&L Gates)
Akin Gump brought on Matthew Hardwick and Daniel Giemajner as London-based partners focused on project finance and development. They previously practiced at Norton Rose. (Akin Gump)
Venable added product liability and mass torts partners John Roberts in Chicago and Karen Firstenberg in Los Angeles. Roberts and Firstenberg previously worked at Faegre Drinker. (Venable)
Dentons brought on Richard Shearer as a commercial litigation partner based in the firm’s Kansas City office. He formerly practiced at Shook Hardy. (Dentons)
James Stafford left Texas firm Scheef & Stone to join Clark Hill as a member in its healthcare practice. (Clark Hill)
The Patent Trial and Appeal Board leadership is trying to clarify controversial new policies on its discretion in determining whether to deny institution of a petition for inter partes review or review an existing patent involved in litigation. David McCombs, Eugene Goryunov and Jonathan Bowser of Haynes Boone explain the shift and what it has meant for practitioners.
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