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The 5th Circuit is slated to hear arguments today in a challenge to a Biden administration rule allowing socially conscious investing by employee retirement plans – an appeal that presents an early test of how courts will scrutinize federal regulations after the U.S. Supreme Court said they no longer have to defer to the expertise of the agencies that issued them, writes Daniel Wiessner.
The argument comes in a lawsuit by 25 Republican-led states challenging the U.S. Department of Labor rule, which says 401(k) and other plans can consider ESG factors as a “tiebreaker” in making investment decisions. A judge declined to block the rule last year, citing the Supreme Court’s long standing Chevron deference doctrine, which had directed courts to uphold agencies’ reasonable interpretations of the laws they enforce.
Now, the appeal of that ruling will give the notoriously conservative 5th Circuit a chance to unpack the Supreme Court’s ruling on June 28 eliminating the doctrine and directing courts to exercise their independent judgment.
Because the trial court expressly relied on Chevron in upholding the ESG regulation, the case is “on track to be an early harbinger of how courts will address pending cases,” said Julie Stapel, a Chicago-based lawyer with the firm Morgan Lewis & Bockius who represents employers.
Boyden Gray’s Jonathan Berry will face off against the DOJ’s Daniel Winik, representing the Labor Department. Circuit Judge Catharina Haynes, appointed by George W. Bush, will hear the case, as will Trump-era Circuit Judges Don Willett and Andrew Oldham.
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- A federal judge in Alaska who abruptly resigned last week subjected his staff to a hostile work environment and engaged in an inappropriate sexualized relationship with a law clerk, a U.S. judicial panel said. The 9th Circuit Judicial Council publicly reprimanded and admonished U.S. District Judge Joshua Kindred, an appointee of former President Donald Trump. Kindred, who joined the bench in 2020, did not respond to requests for comment.
- Senior U.S. District Judge Lynn Hughes in Houston engaged in “improper” conduct but will face no discipline for making “disparaging” remarks about women attorneys and permanently barring a female prosecutor from his courtroom, Chief U.S. Circuit Judge Priscilla Richman of the 5th Circuit concluded. Richman’s order said no further action was necessary to address a judicial misconduct complaint. Hughes did not respond to a request for comment.
- U.S. District Judge Nancy Maldonado will become the first Hispanic judge on the Chicago-based 7th Circuit, after the U.S. Senate voted 47-43 to confirm her. Some Republicans voiced objection over Maldonado’s large trial court case backlog. Maldonado pointed to pandemic-era delays, and a large reassignment of cases to her.
- Phoenix-founded Fennemore Craig is starting a new program to hire lawyers in locations where it does not already have offices, joining a small number of traditionally brick-and-mortar firms that now allow full-time alternatives to in-person work. The initiative will give the 19-office, 285-lawyer firm an edge in recruiting and retaining talent by offering flexibility, its leaders said.
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That’s how much Boeing will pay in a fine to resolve a DOJ investigation into two 737 MAX fatal crashes, the government said. Boeing, as part of the punishment, will plead guilty to a criminal fraud conspiracy charge. The plea deal, which requires a judge’s approval, would brand the planemaker a convicted felon in connection with crashes in Indonesia and Ethiopia over a five-month period in 2018 and 2019 that killed 346 people. The planemaker also agreed to spend at least $455 million over the next three years to boost safety and compliance programs. The settlement drew criticism from victims’ families who wanted Boeing to face a trial and suffer harsher financial consequences.
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Almost as soon as the DOJ disclosed a proposed criminal plea agreement on Sunday with Boeing to resolve the government’s investigation of two 737 MAX fatal crashes, families for some crash victims announced opposition to the deal. The families previously tried and failed to derail Boeing’s 2021 deferred prosecution deal with the government. But Alison Frankel explains why the families’ opposition may carry more weight this time around.
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“We gotta hit a number for the press and for the Koreans.“
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- Jury selection is set to begin in Alec Baldwin’s manslaughter trial for the 2021 fatal shooting of cinematographer Halyna Hutchins during filming of the Western movie “Rust.” Baldwin has pleaded not guilty. His legal team has said the gun was modified, allowing it to fire without a trigger pull, an issue central to the 17-month-old case. The movie set’s chief weapons handler was found guilty at trial and was sentenced in April to 18 months in prison.
- In New Orleans, a 5th Circuit panel will consider whether a U.S. law that bans gun possession by cannabis consumers violates the Second Amendment. A federal judge in Texas had concluded the ban as applied to defendant Paola Connelly was unconstitutional. The DOJ told the appeals court that “history supports the government’s authority to disarm categories of persons whose firearm possession would endanger themselves or others.”
- U.S. District Judge Ana Reyes in D.C. federal court set a hearing in the DOJ’s bid to force lock manufacturing giant Assa Abloy to comply with the terms of an antitrust settlement. The government last week accused the company of violating the terms of the accord by failing to pay for the court-appointed monitor, Hausfeld’s Melinda Coolidge. The deal let Assa Abloy complete a $4.3 billion acquisition of Spectrum Brands’ hardware and home improvement unit.
- Also in D.C., U.S. District Judge Amy Berman Jackson will hold a hearing in the SEC’s case accusing crypto exchange Binance and its founder and former CEO Changpeng Zhao of breaking securities laws. Jackson last month in a blow to Binance said it must face the bulk of the federal agency’s lawsuit. Binance has denied any wrongdoing. Binance agreed in November to pay $4.3 billion to settle with the DOJ and U.S. commodities regulators over illicit finance breaches.
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Court calendars are subject to last-minute docket changes.
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- A federal prosecutor in closing arguments told a Manhattan jury that the 2021 collapse of Sung Kook “Bill” Hwang’s Archegos Capital Management was driven by “lies and manipulation,” as the trial over the $36 billion private investment fund’s failure drew to a close. Hwang pleaded not guilty to fraud and racketeering conspiracy. Archegos deputy Patrick Halligan, who was also on trial, pleaded not guilty to fraud and racketeering conspiracy.
- A Delaware Court of Chancery judge heard hours of testimony from competing experts about the value of a lawsuit that successfully challenged CEO Elon Musk’s $56 billion pay package and a request for the company to pay a record legal fee worth $7 billion. Former SEC Commissioner Robert Jackson testified that the ruling was worth $51 billion in the form of returned stock to Tesla that had been reserved for Musk’s options, while University of Chicago law professor Daniel Fischel countered that there was no cost in cash to Tesla if Musk exercised the grant of stock options.
- U.S. District Judge Marsha Pechman in Seattle dismissed a proposed class action that accused Amazon of obscuring product listings for lower-priced items with better delivery times, duping millions of consumers and causing them to pay more for purchases. Pechman said in her ruling that the two named buyers who sued Amazon last year had not shown how they were allegedly harmed. She gave them 30 days to refile an amended case.
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