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Good morning. Calls for a ban on TikTok are getting louder, but questions abound about whether such a ban could beat a court challenge. Plus, a key witness from the trial against Elizabeth Holmes says his reputation has been devastated by a Hulu miniseries, and why E. Jean Carroll’s defamation trial against former President Donald Trump will get an anonymous jury. And just like that, it’s Friday.
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Some members of U.S. Congress are fueling calls for the Biden administration to ban the Chinese-owned video app TikTok, but any such measure — if the White House decided to pursue it — likely would face a tough court challenge and other hurdles. Our colleagues Alexandra Alper and David Shepardson report that a move to ban the app likely hinges on passage of a new law that bolsters the government’s authority to regulate speech.
TikTok and its parent ByteDance — a team from Covington represented them — succeeded in 2020 in quashing Donald Trump’s effort to impose restrictions. At the time, U.S. District Judge Carl Nichols in D.C. said the Commerce Department “likely overstepped” its legal authority in issuing an effective TikTok ban. “To justify a TikTok ban, the government would have to demonstrate that privacy and security concerns can’t be addressed in narrower ways,” Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, said. “The government hasn’t demonstrated this, and we doubt it could.”
The bipartisan Restrict Act, introduced by Senators this month, would give Commerce new authority to ban foreign technology that poses a national security risk. Legal experts said it would circumvent the speech protections embedded in existing law. But the bill will likely provide no immediate solutions for those calling for a ban. TikTok’s chief executive Shou Zi Chew faced a congressional grilling this week as he tried to appease Republican and Democratic critics that the app creates economic value and supports free speech.
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A group of veteran U.S. Supreme Court lawyers jumped into the D.C. Circuit appeal over whether former President Donald Trump can be sued over the Jan. 6, 2021, siege on the U.S. Capitol by his supporters. Donald Verrilli and other high court litigators at his firm Munger Tolles signed a new brief on behalf of the Democrats and officers suing Trump. (Reuters)
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A South Carolina civil rights organization is seeking the ability to train volunteers who are not lawyers to give limited legal advice to tenants facing eviction, without running into trouble with the state. The lawsuit, filed against the state’s attorney general, argued South Carolina’s unauthorized law practice rules as applied to the proposed program violate speech and association rights protected by the First Amendment. (Reuters)
- The American Bar Association won dismissal of a proposed privacy class action in Michigan federal court, but U.S. District Judge Terrence Berg gave lawyer Mark Crane, who filed the lawsuit, another chance to make his case. Crane’s complaint claimed he received a “barrage of unwanted junk mail” after the ABA sold his data. (Reuters)
- The California Supreme Court wants the state bar to fast-track changes meant to identify potential conflicts of interest among potential bar leaders. The request comes less than two weeks after the state bar released several reports detailing unethical conduct by former employees regarding Thomas Girardi, a prominent plaintiffs’ lawyer now facing federal charges for allegedly taking more than $18 million in funds belonging to his firm’s clients. (Reuters)
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That’s how many Obama-appointed federal judges have either resigned or announced plans to do so before hitting age 65 since August. U.S. District Judge John Vazquez, 52, is the latest to leave the bench, with his announcement coming about a month after U.S. District Judge George Hazel in Maryland resigned to join Gibson Dunn. It’s not clear why Vazquez is stepping down, but Hazel said the salary difference between his $232,600 job as a judge,which is a lifetime appointment, and the position at the law firm was “absolutely a factor.”
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Last fall, while Twitter and Elon Musk were battling over Musk’s repudiation of his agreement to buy the company for $54.20 per share, a lone Twitter shareholder brought a far less heralded suit paralleling the company’s efforts to force Musk to complete the deal he promised. Days after Musk capitulated – but before Musk and Twitter agreed to end their litigation – Delaware Chancellor Kathaleen McCormick concluded that most of the shareholder’s case was not viable. But now the lawyers who filed the shareholder suit have asked her to award them $3 million, arguing that if they hadn’t been lurking in the background with a potential claim for damages, Musk might have gotten away with paying less than the full price he promised. Alison Frankel has the details of this bold bid.
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“Mr. Trump repeatedly has attacked courts, judges, various law enforcement officials and other public officials, and even individual jurors in other matters.“
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President Joe Biden’s Justice Department faces a court-imposed deadline to decide whether to invoke executive privilege to limit the scope of the questioning in depositions of Donald Trump by two ex-FBI officials — Peter Strzok and Lisa Page — who allege they were the targets of an improper political pressure campaign from his White House. U.S. District Judge Amy Berman Jackson said in her order last month in D.C. federal court that Trump should submit to two hours of questions on a “narrow set” of topics. Strzok’s wrongful termination lawsuit alleged his 2018 firing was the result of political pressure from Trump. Page sued over alleged privacy violations stemming from the leak of communication with Strzok. They were among a group of FBI employees who exchanged text messages critical of Trump during the 2016 presidential campaign.
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In Virginia federal court, Google’s lawyers at Freshfields will appear before U.S. Magistrate Judge John Anderson to discuss scheduling in the antitrust lawsuit that the DOJ, Virginia and other states filed in January over the technology company’s digital advertising practices. Google on March 10 lost its bid to transfer the case to Manhattan federal court, where related actions were consolidated. A proposed schedule in the case would set a final pretrial conference in July 2024. The government’s legal team includes longtime former Paul Weiss partner Julia Wood.
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U.S. Circuit Judge Kyle Duncan, a Trump appointee serving on the 5th Circuit in New Orleans, is set to deliver a lecture at the University of Notre Dame on free speech and legal education, after a group of student protesters at Stanford Law School disrupted a speech he was planning to give on its campus earlier this month. Stanford University officials apologized to Duncan after his appearance to deliver remarks to the campus chapter of the conservative Federalist Society. Student protesters said Duncan has taken positions that threatened the rights of LGBTQ people, immigrants, Black voters, women and others.
Court calendars are subject to last-minute docket changes.
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What to catch up on this weekend
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The Arizona Supreme Court ruled that it could not compel the state’s governor to carry out authorized executions, enabling new Governor Katie Hobbs to pause them while her administration probes the state’s death penalty protocols. In its decision, the court said the warrants it issued could only authorize the state corrections department to carry out executions, not force a state official to do so. (Reuters)
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U.S. District Judge Alvin Hellerstein in Manhattan denied Archegos Capital Management founder Bill Hwang’s effort to dismiss an indictment accusing him of fraud in the collapse of his once-$36 billion firm. Hellerstein rejected arguments that the 11-count indictment should be tossed because prosecutors deceived Hwang into cooperating with their probe and because Hwang’s trading activity had been lawful, saying there was no evidence prosecutors had acted inappropriately. (Reuters)
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Adam Rosendorff, a key prosecution witness whose testimony helped convict Theranos founder Elizabeth Holmes of fraud sued Walt Disney over a recent Hulu miniseries that he says defamed him by portraying him as corrupt. Rosendorff, a former Theranos lab director, objected in a New York state court filing to a character who held the same job in “The Dropout,” saying it has had a “devastating effect” on his reputation and career because media and even acquaintances have concluded that the character was based on him. (Reuters)
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The DOJ suffered a new antitrust trial loss, as a federal jury in Maine found four home healthcare managers or owners not guilty on a charge they conspired to suppress wages and not to poach each other’s employees. Defense lawyers called the case “misguided.” (Reuters)
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The U.S. Consumer Financial Protection Bureau’s funding structure is constitutional, the 2nd Circuit said as the U.S. Supreme Court prepares to consider the issue next term. The ruling denied a request by the Law Offices of Crystal Moroney to end a CFPB inquiry into the law firm’s work as a debt collector. (Reuters)
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Greenberg Traurig added white-collar litigation partner Kevin Walsh in New Jersey from Gibbons, where he was co-leader of the government and regulatory affairs team. (Reuters)
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Rikke Dierssen-Morice joined Blank Rome’s insurance recovery practice group in Chicago as a partner. Dierssen-Morice was previously with Maslon. (Blank Rome)
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Energy lawyer Colleen Jarrott jumped to Hinshaw & Culbertson from Baker Donelson. Jarrott will be a partner in the New Orleans office. (Hinshaw)
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Buchalter picked up partner Betty Arkell for its corporate practice and Terry Freeman for its commercial finance practice. Arkell was previously with Robinson Waters & O’Dorisio and Freeman was previously with Bryan Cave. (Buchalter)
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