Good morning. The Biden DOJ just delivered a warning to the 5th Circuit in the administration’s appeal of an order curbing contact with social media companies. Plus, Sullivan & Cromwell snagged two big names in the intellectual property arena; mandatory bar dues face a fresh test in a U.S. appeals court; and jurors in California were urged to impose heavy punitive damages at a J&J talc trial. We’re open and ready to go, on this 7-11. Thanks for reading!
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The DOJ is pressing an “emergency” appeal in the 5th Circuit against a Louisiana federal judge who barred some federal agencies and officials from communicating with social media firms about moderating content on their platforms, our colleague Kanishka Singh reports. The government asked the appeals court to rule by July 24 on a request to pause the trial judge's order.
Louisiana-based U.S. District Judge Terry Doughty on Monday declined to pause his order, blocking federal agencies from talking to social media companies for "the purpose of urging, encouraging, pressuring or inducing in any manner the removal, deletion, suppression or reduction of content containing protected free speech.” Republican attorneys general of Louisiana and Missouri filed the suit, accusing the Biden White House of using the pandemic and threat of misinformation to curb views that did not align with the administration’s.
In its 5th Circuit filing, the DOJ’s legal team, including Daniel Winik of the civil division’s appellate staff, said “the injunction threatens to chill" lawful conduct and to "place the judiciary in the untenable position of superintending the executive branch's communications.” The DOJ said Doughty’s order “raises grave separation-of-powers concerns.” Some legal experts see no precedent for the injunction and told our colleagues that it “will have a difficult time on appeal, because it is such a rare and novel order.”
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Apple’s legal team at Gibson Dunn asked a California federal judge to bar subpoenas from Qualcomm and plaintiffs’ lawyers seeking depositions of Apple chief operating officer Jeffrey Williams and Bruce Watrous, head of corporate and commercial law. Apple, Qualcomm’s biggest customer, isn’t a party in the investors’ class action accusing chip maker Qualcomm of securities violations. (Reuters)
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Husch Blackwell appointed Jamie Lawless as its next chief executive, again choosing a professional with a business background and no law degree for the role. Lawless, who spent the past decade in business positions at Baker McKenzie, will succeed Paul Eberle as chief executive in February 2024. She will serve as chief executive elect and work with Eberle, who was appointed in 2018, on the transition until then. (Reuters)
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Crypto companies are making a renewed push on Capitol Hill for support for legislation they hope will rein in the agency and provide regulatory clarity for the industry. The Blockchain Association, Chamber of Digital Commerce, Crypto Council for Innovation and Coinbase Global are among the groups pressing Congress to build bipartisan support for a draft bill ahead of a key vote in coming weeks, executives and lobbyists told our colleague Michelle Price. (Reuters)
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Circuit Judge Albert Diaz has succeeded Circuit Judge Roger Gregory as chief of the Richmond, Virginia-based 4th Circuit. The court said Diaz is the first Hispanic judge to serve as chief judge of the 4th Circuit. Selection of the chief judge is based on seniority and age. Chief judges, who take on administrative duties in addition to hearing cases, serve seven-year terms. (4th Circuit)
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That’s how much a Canadian farmer was ordered to pay in damages, after a Saskatchewan judge ruled that a thumbs-up image was enough to accept contractual terms. Chris Achter, owner of a farming company in Swift Current, Saskatchewan, had sent a thumbs-up emoji in response to a photograph of a flax-buying contract sent to him by a grains buyer in 2021. Months later, when the time of the delivery arrived, Achter did not deliver any flax. Judge T.J. Keene of the King’s Bench for Saskatchewan said the case raised novel issues “but on the balance was not overly complicated.”
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The lawsuit-killing power of corporate forum selection clauses has expanded again. U.S. District Judge Robert Pitman of Austin, Texas, ruled last week that business software company SolarWinds can enforce a forum selection clause that requires shareholders to litigate derivative suits in Delaware Chancery Court. Pitman’s decision essentially spells the end of the shareholders’ case, which alleges derivative claims that SolarWinds board members violated the Securities and Exchange Act in connection with a devastating 2020 cybersecurity breach that exposed data from thousands of businesses and government agencies to Russian hackers. Alison Frankel analyzes the new decision, which appears to be the first ruling to address the enforcement of a forum selection clause in connection with a derivative claim alleging a violation of the Exchange Act’s anti-fraud provision, Section 10(b).
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"At present, the court has no view on whether the parties' arguments are meritorious, frivolous, or something in between." |
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A 5th Circuit panel will take up a constitutional challenge to Louisiana’s mandatory bar dues. Lawyers representing attorney Randy Boudreaux are seeking an injunction against bar rules requiring lawyers to join and pay dues. Boudreaux’s legal team includes attorneys from the Pelican Institute for Public Policy and the Goldwater Institute. Lawyers at Stanley, Reuters, Thornton, Alford for the Louisiana State Bar Association argue Boudreaux “failed to demonstrate at trial how membership in the LSBA unconstitutionally infringes his rights of freedom of speech or association.” Circuit courts and the U.S. Supreme Court have turned down similar challenges in recent years.
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In Pasadena, a 9th Circuit panel will hear arguments in the prosecution of former U.S. Rep. Jeff Fortenberry of Nebraska, convicted in Los Angeles federal court of making false statements. Paul Weiss appellate chair Kannon Shanmugam, who will argue for Fortenberry, said in a brief that his client was wrongly prosecuted in the Central District of California. “Venue for a criminal prosecution is proper only in the state and district in which the defendant committed the acts that constitute the alleged crime,” Shanmugam told the appeals court. Prosecutors assert in their brief that “Fortenberry was a congressman who received illegal campaign contributions at a Los Angeles fundraiser.” Assistant U.S. attorney Alexander Robbins will argue for the government.
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Two PGA Tour officials will testify before a U.S. Senate panel about the tour's merger with Saudi-backed LIV Golf, but LIV officials have declined to appear. Ron Price, chief operating officer of the PGA Tour, and board member Jimmy Dunne have agreed to testify before the Senate Permanent Subcommittee on Investigations, said Senator Richard Blumenthal, chair of the committee, and Senator Ron Johnson, the top Republican. The PGA Tour, DP World Tour and LIV, which had been involved in a bitter fight that split the sport, announced an agreement in early June to merge and form a unified commercial entity.
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In Oakland federal court, U.S. District Judge Yvonne Gonzalez Rogers will hear arguments from Apple in its bid to dismiss a lawsuit from French app developers that accused the iPhone maker of violating U.S. antitrust law by overcharging them to use its app store. The plaintiffs in the proposed class action include Société du Figaro, which develops the Figaro news app, L'Équipe 24/24, which develops the L'Équipe sports news and streaming app, and Le Geste, an association of French content providers. A team from plaintiffs firm Hagens Berman represents the developers, and lawyers from Gibson Dunn will appear for Apple.
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Court calendars are subject to last-minute docket changes. |
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A group representing the last three living survivors of the 1921 Tulsa massacre will appeal a judge's dismissal of a lawsuit seeking reparations for the racist violence in Oklahoma. The Justice for Greenwood Foundation said it would fight the decision by Tulsa County District Court Judge Caroline Wall to toss the lawsuit from three survivors, all of whom are over the age of 100. Wall's brief order did not provide details on her reasoning. (Reuters)
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Delaware U.S. Attorney David Weiss, overseeing the criminal case against President Joe Biden's son Hunter, said the DOJ never impeded him from bringing charges, appearing to debunk claims made by an IRS whistleblower. Weiss in a letter to Republican Senator Lindsey Graham denied allegations that he ever formally sought permission from Attorney General Merrick Garland to be designated as special counsel - a status that would have allowed him to bring federal charges in any district across the nation against Hunter Biden. (Reuters)
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Medical technology company Medtronic must defend itself again from challenges brought by rival Axonics to two of its patents related to nerve-stimulation technology, a Federal Circuit panel ruled. The court said the U.S. Patent Office's Patent Trial and Appeal Board analyzed the case incorrectly and sent it back for the board to reconsider its decisions that the patents were valid. (Reuters)
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The makers of a new "Anne of Green Gables" musical and heirs of the classic children's book's author have settled their trademark dispute over the musical's name. The producers and a licensing company co-owned by L.M. Montgomery's heirs and the Canadian province of Prince Edward Island told a Manhattan federal judge that they agreed to dismiss the case and not refile it. (Reuters)
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Two conservation groups challenged the EPA’s approval of Colorado’s plan to reduce smog near Denver, which they said will not adequately rein in air pollution from cars and fossil fuel development. The Center for Biological Diversity and 350 Colorado filed a petition for review in the 10th Circuit. The EPA didn’t immediately respond to a request for comment. (Reuters)
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Sullivan & Cromwell hired former U.S. Patent and Trademark Office director Andrei Iancu and former federal judge Kathleen O'Malley, bolstering the firm's patent practice. Iancu and O'Malley both joined Sullivan & Cromwell from intellectual property-focused law firm Irell & Manella. (Reuters)
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Skadden hired partner David Simon in D.C. as global co-head of the firm’s cybersecurity and data privacy practice. Simon joins the firm from Mayer Brown, where he was co-leader of global cyber incident response. (Reuters)
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Cleary Gottlieb hired David Last as a D.C.-based white-collar partner from the DOJ, where he had served as chief of the Foreign Corrupt Practices Act unit. (Reuters)
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Paul Hastings added Ryan Phair and Craig Lee as D.C. based antitrust partners from Hunton Andrews Kurth. Phair will serve as co-chair of the firm’s antitrust practice. (Reuters)
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King & Spalding brought on trial partner Mary-Olga “Mo” Lovett in Houston from Greenberg Traurig. (Reuters)
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Baker Botts added climate and energy partner Shailesh Sahay in the firm’s D.C. office. Sahay was previously at Foley Hoag. (Reuters)
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Barnes & Thornburg added New York-based corporate department partner M. Shams Billah, who will lead the firm’s private credit team. Billah previously was at Hughes Hubbard. (Barnes & Thornburg)
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Ropes & Gray brought on Natasha Hwangpo as a restructuring partner based in the firm’s New York office. Hwangpo was previously at Weil. (Ropes & Gray)
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Eversheds Sutherland hired Renée Dailey in Hartford, Connecticut, as a U.S. finance practice partner. Dailey joins the firm from Akin. (Eversheds)
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BakerHostetler brought on Sarah La Voi as a Chicago-based partner in the firm’s digital assets and data management practice. La Voi previously was general counsel to advertising and marketing agency WPP. (BakerHostetler)
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The fast development and implementation of AI systems have led to fears that technology will completely replace human workers. Those concerns are overblown, write Keith Markel, Alana Mildner and Jessica Lipson of Morrison Cohen. Employers must provide at least 60 days' notice to employees who will be laid off, the authors write, unless certain exceptions are present. When it comes to employee layoffs, there always will be a need for human insight.
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