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Good morning. The 5th Circuit overnight issued a divided order keeping the abortion pill mifepristone available — with restrictions — while a legal challenge seeking to ban it plays out. Plus, jury selection is set to start today in Dominion Voting’s defamation lawsuit against Fox News, just as the judge in the case hit the media organization with sanctions for withholding evidence. And the ABA just posted new data on worsening racial disparities in bar exam scores. Lots of news to unpack. Let’s dive in.
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The abortion pill mifepristone will remain available in the U.S. while anti-abortion groups pursue a legal challenge seeking to ban it, but with significant restrictions including a requirement for in-person physician visits to obtain the drug, a divided 5th Circuit panel ruled late Wednesday night.
>>> Read the order.
The appeals court panel put on hold part of last Friday’s order by U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, that had suspended FDA approval for the drug while the groups’ lawsuit is pending, Brendan Pierson reports. The FDA and lawyers for the groups suing to block the drug could not immediately be reached for comment.
The 2-1 appeals court panel declined to block portions of Kacsmaryk’s order, effectively reinstating restrictions on the pill’s distribution that had been lifted since 2016. Two appointees of former President Donald Trump — Circuit Judges Kurt Engelhardt and Andrew Oldham — were in the majority. Circuit Judge Catharina Haynes, appointed by then-President George W. Bush, voted for a brief stay of the entire trial court order pending further review.
Read more: Abortion pill access may continue even if FDA loses US court battle
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- Shearman & Sterling is conducting another round of staff reductions, becoming the latest law firm to shed business professional roles in the past few months. The firm is letting go of an unspecified number of people as part of a “global reduction of our Business Services workforce,” in what a spokesperson described as a continuous review process of its model. (Reuters)
- A top lawyer whose clients have included billionaires Mark Cuban and Elon Musk and who is currently representing President Joe Biden’s son Hunter in a U.S. tax investigation has left Latham for a smaller litigation-focused firm. Christopher Clark will team up with law firm Smith Villazor to form Clark Smith Villazor. (Reuters)
- Democratic lawyer Marc Elias will no longer represent the Democratic National Committee, one of his longtime clients. His firm Elias Law Group will continue to handle legal work for other Democratic entities, including Senate and House Democratic committees. The firm also conducts litigation on behalf of a number of state Democratic parties and Democratic lawmakers. (Reuters)
- Legal and professional services firm Ince Group plans to initiate insolvency proceedings and pursue a sale of the company, amid ongoing financial difficulties and delays in reporting its fiscal results. Ince’s directors have applied to London’s High Court to appoint administrators, according to court filings. (Reuters)
- U.S. District Judge John Tunheim in Minnesota awarded nearly $25 million in legal fees to Hagens Berman and Gustafson Gluek as part of their work on a $75 million civil price-fixing settlement for pork consumers who sued Virginia-based Smithfield. The company denied liability as part of the deal, which received final approval this week. (Reuters)
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CREDIT: Karen Sloan, REUTERS, Source: American Bar Association
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That’s the difference in percentage points between the first-time pass rate for white test takers last year (83%) and Black examinees (57%), according to new data from the American Bar Association. In 2021, that gap was 24 percentage points. That disparity also held true for Hispanic and Asian test takers, with first-time pass rates of 69% and 75% respectively. The disparity with white examinees grew from 13 percentage points to 14 in 2022 for Hispanic test takers, the ABA data show. And the gap with first-time Asian examinees went from 6 percentage points to 8 last year. The performance of white first-time bar examinees also declined from an 85% pass rate in 2021 to 83% in 2022.
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Two years after a federal appellate court revived thousands of lawsuits by joint implant surgery patients who blame a 3M Co warming device for their post-surgery infections, plaintiffs lawyers are trying to oust the judge who has overseen the consolidated multidistrict litigation since 2015. They’ve got an unusual rationale: The judge, they contend, “surreptitiously” hired a retired products liability defense lawyer as a clerk, then adopted his legal theories to exclude plaintiffs’ expert witnesses. The judge covered up the role of this “man behind the curtain,” plaintiffs said, because she knew his hiring would reveal her bias. The judge declined Alison Frankel’s request for comment, but 3M doesn’t think much of plaintiffs’ theory — or their underlying claims.
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“The situation has stabilized, and the dumpster fire is out.“
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—FTX attorney Andy Dietderich of Sullivan & Cromwell, who said the bankrupt crypto exchange has recovered over $7.3 billion in cash and crypto assets. Dietderich said the company is starting to think about its future after months of effort devoted to collecting resources and figuring out what went wrong under the leadership of indicted ex-founder Sam Bankman-Fried.
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- A 3rd Circuit panel will hear a dispute over a Pennsylvania bar rule that prohibits lawyers from discriminatory or harassing conduct. The state bar’s disciplinary board, represented by Williams & Connolly’s Lisa Blatt, brought the appeal after losing a lower court ruling. Blatt contends the trial court was wrong to conclude the rule violated attorneys’ free-speech rights. The American Bar Association and other groups are backing the state bar. Conservative legal and religious groups lined up in the appeals court against the rule. Chief Circuit Judge Michael Chagares will preside with Circuit Judges Anthony Scirica and Thomas Ambro.
- Former President Donald Trump is due back in New York today to be questioned in a $250 million civil fraud lawsuit against him by the state’s attorney general, Karen Freifeld reports. The deposition will take place behind closed doors and is unlikely to draw the kind of attention that his surrender on separate criminal charges did last week. Trump is expected at New York Attorney General Letitia James’ offices in lower Manhattan, where he will be asked about his business practices. The lawsuit accuses him and others of a decade-long scheme to manipulate the values of properties and his net worth in order to obtain favorable loans and tax benefits. Trump has called the case a partisan “witch hunt.”
- In D.C. federal court, U.S. District Judge Amit Mehta will hear day-long arguments from Google’s lawyers, the DOJ and state attorneys general in a pair of related suits alleging the company violated antitrust law in how it maintained its search business. Kenneth Dintzer of the DOJ is a lead attorney for the U.S., and Google is represented by John Schmidtlein of Williams & Connolly. Jonathan Sallet of the Colorado attorney general’s office is a lead counsel for state plaintiffs. Google has denied the government’s claims, which will be tested at trial in September. The company is separately challenging U.S. and state claims in Virginia federal court that it abused its dominance of online advertising. That case could head to trial next year.
Court calendars are subject to last-minute docket changes.
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- The 4th Circuit said it would convene as a full court to consider a pair of transgender rights cases from West Virginia and North Carolina, granting “en banc” review after arguments in the disputes but before any rulings had been issued. Lambda Legal senior attorney Tara Borelli, who argued in both of the disputes, said “having both cases reviewed by the full court will allow for consistency across the issues in both appeals.” (Reuters)
- Belgian biopharmaceutical company UCB lost its Federal Circuit appeal seeking to revive a patent covering its Parkinson’s disease drug Neupro, clearing an obstacle for Teva’s Actavis Laboratories UT and Viatris’ Mylan Technologies to sell generic versions of the drug. The Federal Circuit agreed with a Delaware federal court that UCB’s patent on Neupro patches was invalid. (Reuters)
- E-cigarette maker Juul Labs agreed to pay $462 million over eight years to settle claims by six U.S. states including New York and California, along with the District of Columbia, that it unlawfully marketed its addictive products to minors. Juul, which did not admit wrongdoing in the settlement, has now settled with 45 states for more than $1 billion, putting most of the long-running litigation over its business practices to rest. (Reuters)
- U.S. District Court Judge Daniel Hovland in North Dakota temporarily blocked implementation of a Biden administration rule establishing protections for seasonal streams and wetlands in 24 states. The rule, which protects waterways with a “significant nexus” to navigable U.S. waters, was challenged in a lawsuit brought by West Virginia and 23 other Republican-led states that called it unconstitutional and confusing for landowners. (Reuters)
- Donald Trump is suing his ex-lawyer Michael Cohen on for at least $500 million in damages, as the former U.S. president steps up attacks on his onetime loyal “fixer” after Cohen testified before the Manhattan grand jury that indicted Trump. Lanny Davis, a lawyer for Cohen, called Trump’s lawsuit “frivolous.” (Reuters)
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- Starbucks named Brad Lerman as its top lawyer, just a few weeks after Laxman Narasimhan took over as CEO. Lerman, who starts on May 8, retired last year from medical device maker Medtronic, where he had held the top legal spot since 2014. (Reuters)
- Bryan Cave brought on corporate transactions partner Rob Crea in San Francisco to lead the firm’s fund formation group. He joins from Vedder Price. (Bryan Cave)
- Eckert Seamans picked up Cynthia Brennan in Philadelphia. Brennan, previously at Rawle & Henderson, will be a partner in the firm’s professional liability practice. (Eckert)
- Foley added D.C.-based intellectual property partner Andrew Holtman from Akin Gump. (Foley)
- Saul Ewing brought on Evan Gotlob as a Boston-based white-collar partner. Gotlob was previously an assistant U.S. attorney in Massachusetts. (Saul Ewing)
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The U.S. Supreme Court next week is set to hear a pair of whistleblower cases that Brett Johnson and Claudia Stedman of Snell & Wilmer said are likely to prove to be significant in determining the scope of the federal False Claims Act, long a vital tool for the U.S. in combating waste, fraud and abuse in government procurement. Here’s more on the two key cases at the high court.
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