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Good morning. Federal Circuit Judge Pauline Newman’s lawsuit seeking to block a competency inquiry raises novel questions with few guideposts, legal experts say. Plus, U.S. courts are preparing to wind down their pandemic-era remote access practices; Elon Musk’s lawyers tangled with the SEC in his bid to end pre-approval of some of his tweets; and we dig into why there are such big shifts in the latest U.S. News & World Report law school rankings.
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Federal Circuit Judge Pauline Newman’s lawsuit challenging her court’s inquiry into whether she is fit to continue serving on the bench raises novel legal questions with few guideposts, judiciary experts told our colleagues Andrew Goudsward, Blake Brittain and Jacqueline Thomsen.
Newman, 95, sued the court’s chief judge, Kimberly Moore, and two colleagues in D.C. federal court alleging their probe violated her constitutional rights and unlawfully sidelined her from the court’s business. The complaint asks the D.C. court to resolve a dispute between appellate judges from a different court, a situation with few parallels in recent history. Moore and a spokesperson for the Federal Circuit court did not return requests for comment.
“Nothing even remotely like this has happened” in the more than 40 years since the U.S. Congress implemented a process for investigating complaints against judges, according to Arthur Hellman, a professor at the University of Pittsburgh who studies the federal judiciary. He added: “It’s uncharted waters for everybody.” At least two other U.S. judges have challenged sanctions for misconduct, but neither case involved an active investigation and both were rendered moot before key legal questions were resolved.
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- The latest U.S. News & World Report law school rankings brought a number of dramatic shifts, the result of a revamped methodology that placed greater emphasis on graduate employment and bar pass rates. One law dean said he expected “far more volatility in these rankings than we saw prior to these changes.” (Reuters)
- Remote access to U.S. civil and bankruptcy court hearings will end in September, after a top federal judiciary committee found that the COVID-19 pandemic is no longer affecting how the federal courts function. Remote access to criminal proceedings ended on Wednesday, when an authorization created by federal COVID-era legislation expired. (Reuters)
- The U.S. Senate Judiciary Committee advanced three of President Joe Biden’s judicial nominees who stalled in the committee during the health-related absence of California U.S. Sen. Dianne Feinstein. On party-line votes, the panel approved three federal district court nominees Charnelle Bjelkengren for the Eastern District of Washington; S. Kato Crews in Colorado; and Marian Gaston for the Southern District of California. (Reuters)
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That’s how much bankrupt crypto lender BlockFi received through a court’s permission to return to customers with non-interest-bearing accounts, without repaying customers who had tried to move funds into those accounts at the last minute. U.S. Bankruptcy Judge Michael Kaplan in New Jersey said that customers owned their deposits in BlockFi’s Wallet program, which did not pay interest and kept deposits separate from BlockFi’s other funds. Kaplan ruled that customers who had interest-bearing accounts did not own their deposits. Questions about ownership of customer funds have been raised in other crypto bankruptcies.
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Scott Harkonen, the onetime CEO of biotech company InterMune, spared no expense when he was indicted in 2008 for wire fraud based on what prosecutors said was a deceptive 2002 press release about clinical trial results for an InterMune drug. Harkonen spent millions of dollars trying to clear his name through the courts, all to no avail. He finally received a form of vindication in 2021. In the last days of Donald Trump’s presidency, Trump granted a pardon to Harkonen, who then tried to leverage Trump’s pardon to force InterMune (now part of Roche) to cover the cost of his defense. On Wednesday, a Delaware judge rejected that attempt, holding that a presidential pardon does not constitute a “success” when it comes to indemnifying corporate crime. Writes columnist Alison Frankel: “Unfortunately for Harkonen, even Donald Trump couldn’t save him from legal bills.”
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“While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.“
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—U.S. Supreme Court Justice Neil Gorsuch, who authored the court’s main opinion after the justices voted 5-4 to uphold a lower court’s dismissal of a lawsuit seeking to invalidate a California law banning the sale of pork from pigs kept in tight confinement. The court rejected a challenge from the National Pork Producers Council and the American Farm Bureau Federation, which argued the law improperly regulates out-of-state farmers, in violation of the Constitution’s Commerce Clause. Chief Justice John Roberts wrote a partial dissent that was joined by Justices Samuel Alito and Brett Kavanaugh, as well as Justice Ketanji Brown Jackson, which said they would have allowed the challengers to the California law to pursue their claim in the lower courts.
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- The Biden administration will respond to arguments in the 5th Circuit from anti-abortion groups that assert rulings curbing access to the abortion pill mifepristone should be allowed to take effect pending the outcome of the U.S. government’s appeal. The administration is appealing a Texas federal judge’s preliminary order, currently on hold pending appeal, suspending approval for the drug. A panel of three conservative judges who have ruled against abortion rights will hear the case next week.
- Microsoft’s lawyers at Wilkinson Stekloff and King & Spalding will appear in San Francisco federal court to argue against a private bid to block the company’s $69 billion planned acquisition of “Call of Duty” maker Activision Blizzard. U.S. District Judge Jacqueline Corley also will weigh Microsoft’s bid to dismiss an amended complaint. The deal would mark the largest-ever in gaming if it is completed. Microsoft has defended the tie-up as benefiting gamers. Lawyers for the plaintiffs argue the deal would harm competition in the video game industry. Various regulatory agencies in the U.S. and elsewhere are weighing the acquisition.
- Argentine businessman Alejandro Burzaco, former head of a sports marketing company, is scheduled to be sentenced in Brooklyn federal court for paying millions of dollars in bribes to secure marketing rights to soccer tournaments, including the Copa America, Copa Libertadores and World Cup. Burzaco pleaded guilty in 2015 and cooperated with prosecutors. He was a cooperating witness at trial this year in the prosecution of two former 21st Century Fox executives, one of whom was convicted while the other was acquitted. U.S. District Judge Pamela Chen will preside at the hearing.
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Court calendars are subject to last-minute docket changes.
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What to catch up on this weekend
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- SVB Financial, the bankrupt former parent of failed Silicon Valley Bank, said the FDIC must release $10 million in tax refund checks owed to the company, escalating a dispute over the agency’s efforts to seize assets in the wake of the bank’s collapse. SVB Financial said in a court filing in Manhattan that the FDIC acted before waiting for a court order, intercepting five checks totaling $10 million and laying claim to $219 million in expected tax refunds. It urged the court to stop the FDIC from interfering with its property rights, saying its “ham-fisted authoritarianism should not be allowed to continue.” (Reuters)
- A 2nd Circuit panel questioned Elon Musk’s bid to end an agreement that he made to get a Tesla lawyer’s preapproval of some of his tweets, with judges pointing out that he agreed to it as part of a 2018 deal with the SEC. Musk’s attorney Ellyde Thompson of Quinn Emanuel told the appeals court that although the Tesla chief executive thought the settlement would “buy peace” with the SEC, the agency’s recent attempts to enforce the tweet-vetting provision have discouraged him from exercising his right to free speech. (Reuters)
- In a 9-0 vote, the U.S. Supreme Court overturned the bribery conviction of Joseph Percoco, former New York Governor Andrew Cuomo’s executive deputy secretary, in a ruling that further limits the ability of federal prosecutors to pursue political corruption cases. Percoco was convicted in 2018 and sentenced to six years in prison for seeking $315,000 in bribes in exchange for helping clients of Albany lobbyist Todd Howe, but the court said the jury used the wrong test to convict Percoco of honest-services fraud. (Reuters)
- Former President Donald Trump appealed a New York jury’s verdict in a civil case that he sexually abused and defamed writer E. Jean Carroll. Court records showed that Trump notified the 2nd Circuit that he was appealing the verdict, as his lawyer Joseph Tacopina previously said he would. (Reuters)
- The foundation tasked with overseeing how most of Ohio’s opioid settlement funds are spent must make its records public, the state’s Supreme Court ruled. In a unanimous, unsigned opinion, the court rejected OneOhio Recovery Foundation’s argument that, as a private foundation, it was not subject to the state’s public records law. (Reuters)
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- A trio of lawyers catering to high-net-worth clients joined McDermott from Stroock & Stroock & Lavan. Partner Anita Rosenbloom, who was chair of Stroock’s private client services group, joins McDermott in New York alongside counsel John Kiely, while partner Jay Scharf will be based in the firm’s Miami office. (Reuters)
- Sullivan & Cromwell added Jacqueline Wenchen Tang as a Hong Kong-based partner focused on financing and restructuring. She joins the firm from Kirkland. (Reuters)
- Corporate finance partner Dayan Rosen joined McGuireWoods from Stradling, where he was debt finance practice leader. Rosen will be based in Los Angeles. (McGuireWoods)
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