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Good morning. A lawyer’s long-running fight against an anti-discrimination rule adopted by attorney regulators in Pennsylvania has reached the 3rd Circuit. Plus, the judge who oversaw Purdue Pharma’s bankruptcy has joined Skadden, and the California bar is facing financial trouble. Take a deep breath; it’s Friday.
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A lawyer’s long-running First Amendment challenge to attorney regulators in Pennsylvania over the adoption of an anti-harassment and discrimination rule ran into questions at the 3rd Circuit, reports David Thomas.
The 3rd Circuit heard arguments in Zachary Greenberg’s fight against the Pennsylvania rule, which is modeled after an ABA rule and prohibits lawyers from knowingly engaging “in conduct constituting harassment or discrimination” based on race, sex, religion and other grounds.
Greenberg, who is represented by Adam Schulman of the Hamilton Lincoln Law Institute, claims he is at risk of violating the rule because of presentations he gives about offensive and derogatory language. But the Pennsylvania Supreme Court’s Office of Disciplinary Counsel, represented by Williams & Connolly’s Lisa Blatt, has said it would not prosecute such conduct.
“It looks like you have an Office of Disciplinary Counsel doing its job in a way that doesn’t portend any type of harm coming to Mr. Greenberg,” Circuit Judge Thomas Ambro said.
U.S. District Judge Chad Kenney blocked the rule in March 2022, after blocking an earlier version of the rule in 2020 in response to another challenge from Greenberg. The rule has attracted support from the ABA and other bar groups and opposition from conservative and religious groups, including on the grounds that it could be abused by bar officials in the future.
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Former U.S. Bankruptcy Judge Robert Drain, who oversaw the bankruptcy of OxyContin maker Purdue Pharma and approved controversial legal protections for the Sackler family members who owned the company, is joining Skadden. (Reuters)
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Texas billionaire Harlan Crow purchased several properties in Savannah, Georgia, from U.S. Supreme Court Justice Clarence Thomas — but Thomas never reported the sale as required by federal disclosure laws, according to a report from ProPublica. Crow said he purchased the property to one day make it into a museum telling Thomas’ story, the publication said. The report follows an earlier ProPublica article, which detailed Crow’s relationship with Thomas and said the justice accepted expensive vacations from the billionaire for decades. Thomas has called Crow a “dear friend” and defended the luxury trips. (ProPublica)
- A lawsuit food distributor Sysco filed against Burford in Chicago federal court, challenging the litigation funder’s alleged attempts to control the outcome of Sysco’s antitrust cases, will remain before U.S. District Judge Martha Pacold. Sysco had tried to transfer the case to U.S. District Judge Thomas Durkin, who is overseeing antitrust litigation alleging a price-fixing conspiracy in the chicken industry. Durkin in a four-page order said his oversight of the chicken antitrust litigation “is not relevant to addressing claims about the terms of the finance agreement” underlying the feud between Sysco and Burford.
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That’s how much active lawyers licensed in California would pay in annual fees, if a recommended $24 increase is adopted. The California bar often has outspent its general fund revenue in recent years and should increase lawyer fees and sell off its San Francisco office building to cover its growing costs, according to a new state auditor report. The bar said in January that it would ask state lawmakers to approve higher annual fees in 2024. The state auditor also recommended a fee increase of $6 for inactive attorneys.
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Life just got a little more complicated — and probably a bit less remunerative — for class-action lawyers who litigate false-labeling cases in Florida, Georgia and Alabama. The 11th Circuit ruled on Wednesday that class action plaintiffs who claim products are falsely labeled do not have standing to pursue injunction relief unless they offer concrete evidence that they are at risk of future injury from purchasing the product again. Why does that affect class counsel fees? Alison Frankel’s latest column explains that trial judges often consider injunctive relief — typically, defendants’ promises to change packaging to remove allegedly deceptive language — when they award fees. But Wednesday’s ruling puts plaintiffs lawyers in a bind: If they argue a falsely advertised product is a hoax, they also can’t credibly assert arguments that would establish their right to seek injunctive relief for the class.
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“Winning business on the merits is never unlawful.“
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—Williams & Connolly partner John Schmidtlein, a top lawyer for Google, arguing in D.C. federal court against the merits of the DOJ’s antitrust lawsuit accusing the company of abusing its web search engine dominance. U.S. District Judge Amit Mehta actively questioned Schmidtlein, including about whether the company’s position to make deals gave it an “anticompetitive” advantage. The DOJ’s Kenneth Dintzer argued that because of its gigantic market share, Google could not legally make the same deals that a less powerful search engine company could make. The case is slated for trial in September.
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What to catch up on this weekend
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A 21-year-old member of the U.S. Air National Guard who was arrested for alleged leaks of classified documents is expected to make his initial appearance in Massachusetts federal court. Attorney General Merrick Garland said the FBI arrested Jack D. Teixeira “in connection with an investigation into alleged unauthorized removal, retention, and transmission of classified national defense information.” The DOJ did not say what charges Teixeira would face, although they will likely involve criminal charges of willfully retaining and transmitting national defense information.
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U.S. District Judge Trevor McFadden in D.C. federal court will hold a status hearing in a lawsuit Latham lodged for client 2U challenging the U.S. Education Department’s “brand-new assertion of sweeping regulatory authority over tens of thousands of entities providing key services to institutions of higher education.” Maryland-based 2U, according to its lawsuit, works with higher education institutions to support their online education programs. The lawsuit alleged new education department guidance “radically redefines what a third-party servicer is.” McFadden said he will set a briefing schedule at the hearing.
Court calendars are subject to last-minute docket changes.
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Jury selection began in Delaware Superior Court in Dominion Voting’s $1.6 billion defamation lawsuit against Fox News. The jury, which will come from a heavily Democratic county, will be asked to decide whether Fox knowingly aired falsehoods that claimed Dominion’s voting machines were used to rig the 2020 election against former President Donald Trump. Delaware Superior Court Judge Eric Davis, presiding over the case in Wilmington, questioned prospective jurors behind closed doors. Opening statements are expected to begin on Monday. (Reuters)
- Google received a mixed ruling from a San Francisco federal judge in a patent lawsuit brought by Sonos over wireless audio technology, failing to invalidate all of the patents before a trial but narrowing Sonos’ claims. The case, set for trial May 8, is part of a contentious IP dispute between the former business partners over their smart speakers that includes lawsuits in the United States, Canada, France, Germany and the Netherlands. (Reuters)
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Kroger’s lawyers at Arnold & Porter asked a California federal judge to dismiss a consumer antitrust suit seeking to block the grocer from buying rival Albertsons for $25 billion. The complaint in California federal court alleged the proposed deal would reduce competition for supermarkets and drive up prices. Debevoise represents Albertsons. (Reuters)
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Photoshop maker Adobe has agreed to pay $3 million to resolve allegations it made improper payments to companies that had a contractual or other relationship with the government that allowed them to influence federal purchases of the company’s software. The DOJ says between January 2011 and December 2020, Adobe allegedly paid the companies a percentage of the purchase price of the software, payments that constituted prohibited kickbacks. Adobe did not respond to a request for comment. (Reuters)
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- Ropes & Gray hired Jordan Altman, an IP transactions lawyer who has worked on deals for Dow Chemical and Raytheon Technologies. Altman joins Ropes & Gray as a partner in New York from rival law firm Shearman & Sterling. (Reuters)
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Hogan Lovells hired consumer products litigator Trenton Norris as a San Francisco-based partner from Arnold & Porter, where he was a co-leader of the consumer products and retail sector team. (Reuters)
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Goodwin added Dustin Calkins as a San Francisco-based real estate partner. Calkins was previously at Orrick. (Goodwin)
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Baker Donelson brought on Brian Malcom in the firm’s Birmingham office as a financial services litigation and compliance partner. He was previously at Waller Lansden. (Baker Donelson)
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