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Good morning. The Biden administration saw some firsts in the judiciary confirmation arena this week, including the withdrawal of one nominee who faced bipartisan opposition. Plus, McKool Smith co-founder Mike McKool leaves his firm over a case, and Hyundai and Kia will pay $200 million to settle claims over rampant car thefts. It’s Friday — we made it.
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Biden’s big week of US court confirmation firsts
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The Biden administration’s drive to confirm judicial nominees saw a series of highs and lows this week, including the confirmations of the first Latino to serve on the D.C. Circuit and the first Black woman to serve on the 11th Circuit. And then there was a first the White House won’t tout: the first nominee to fail due to a lack of Democratic support.
Biden 1st Circuit nominee Michael Delaney asked to withdraw amid opposition from Democrats and Republicans, Jacqueline Thomsen reports. Some Democrats questioned a brief that Delaney signed defending a since-repealed New Hampshire law requiring parental notification before their minor child has an abortion. Delaney told senators he had “extremely limited involvement” in the case, which was litigated while he was the state’s deputy attorney general.
The Senate Judiciary Committee did not vote on Delaney’s nomination on Thursday, despite his name appearing on the agenda for a month. Hours later, the Senate confirmed Nancy Abudu to serve as the Atlanta-based 11th Circuit’s first Black woman. Abudu of the Southern Poverty Law Center was confirmed 49 to 47, overcoming Democratic opposition from Democratic Sen. Joe Manchin. Abudu became the administration’s 34th confirmed appeals court judge.
Earlier in the week, the Senate confirmed Bradley Garcia as the first Latino to serve on D.C. Circuit. The former O’Melveny partner will join the bench from the DOJ. Another appeals court nominee awaiting a full Senate vote, Irma Carrillo Ramirez for the 5th Circuit, saw bipartisan support from Republican and Democratic members of the judiciary committee at her hearing this week.
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- Mike McKool, who co-founded national trial firm McKool Smith, has left it in order to take a case for an unnamed client, the firm said. McKool left “to pursue a litigation opportunity for a client that the firm is unable to represent,” and that McKool will be forming another law firm. He founded McKool Smith in 1991. (Reuters)
- Lawyers in California may soon be required to report professional misconduct by their peers and colleagues, as do attorneys in every other state. The California bar’s Board of Trustees voted for a new ethics rule mandating lawyers report fraud, misappropriation of funds or other criminal acts that “reflects adversely on that lawyer’s honesty, trustworthiness, or fitness,” by fellow attorneys. The California Supreme Court has the final say on adoption of the rule. (Reuters)
- Ohio state’s attorney discipline office is supporting a six-month license suspension for a former federal prosecutor accused of improper workplace conduct involving a law school intern. The prosecutor, Mark Bennett, now in private practice, is seeking a “fully stayed” six-month suspension. The bar disciplinary office had backed that proposal, but it now supports an ethics board’s recommended six-month penalty without any stay.
- CSX’s lawyers at McGuireWoods are fighting a bid from freight rail rival Norfolk Southern and another company for $14 million in legal fees for defeating CSX’s antitrust lawsuit in Virginia federal court. Norfolk Southern’s attorneys at law firms Troutman Pepper and Skadden Arps contend they are entitled to be paid for the time and resources they put in defending against CSX’s push for access to a key East Coast marine terminal.
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REUTERS/Stefano Rellandini/Illustrative
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That’s the alleged thread-count of certain Simmons Beautyrest bedding and linen products that a proposed class-action lawsuit said were marketed as having a 1,000 count. Plaintiffs’ firm Bursor & Fisher alleged in the complaint in California federal court that Simmons was deceptively marketing products with an inflated thread-count. The FTC has warned about how variations in industry standards, for counting threads, can lead to consumer confusion. Simmons didn’t respond to a request for comment. In a similar case, Macy’s has agreed to a $10.5 million settlement in Ohio federal court.
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The Massachusetts Supreme Judicial Court issued a ruling on Monday that allows people to legally challenge police stops for discrimination even if law enforcement can articulate some reasonable suspicion. The ruling provides a remedy for drivers, for example, who have evidence that they were racially profiled before they actually committed a traffic or moving violation. Columnist Hassan Kanu says the ruling has some important limitations, including that it preserves police officers’ broad discretion to stop and search virtually anyone nearby the scene of a serious crime. Nonetheless, the decision bolsters important individual rights against police intrusion and could push police departments to improve practices.
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“A dissent with ‘no theory’ and ‘[n]o reason’ is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes.“
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—Supreme Court Justice Elena Kagan, who commented in a biting footnote on how much effort Justice Sonia Sotomayor expended responding to her dissent rejecting Sotomayor’s majority opinion holding that Andy Warhol’s works based on celebrity photographer Lynn Goldsmith’s 1981 photo of Prince were not immune from Goldsmith’s copyright infringement lawsuit. Kagan argued the ruling “turns its back on how creativity works.” Sotomayor’s opinion said the work was not transformative because it served the same commercial purpose as Goldsmith’s photo: to depict Prince in a magazine.
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- A 2nd Circuit panel will take up an employment lawsuit filed by a white woman who falsely told police she was threatened by a Black bird-watcher in New York City’s Central Park. In September, U.S. District Judge Ronnie Abrams rejected Amy Cooper’s claim that she was defamed when her employer Franklin Templeton and its chief executive Jenny Johnson referred on three occasions to the incident and said they did not tolerate racism. A video of the incident went viral. Franklin Templeton has said it “responded appropriately” to the incident involving Cooper. Matthew Litt of Litt Law will argue for Cooper, and Bryan Killian of Morgan Lewis will represent Franklin Templeton.
- U.S. Air National Guardsman Jack Douglas Teixeira, accused of leaking military secrets, is due to appear in Massachusetts federal court for a continuation of his detention hearing. U.S. Magistrate David Hennessy last month expressed concern that the 21-year-old’s knowledge of classified material might be valuable to a foreign government, but the court declined to rule on whether Teixeira should be released into the custody of his father pending his criminal trial. Teixeira was arrested by the FBI on April 13 at his home in Massachusetts and charged with violating the Espionage Act.
- In Manhattan federal court, U.S. District Judge Jed Rakoff is expected to hear oral arguments on Jes Staley’s bid to dismiss JPMorgan’s lawsuit over his relationship with the bank’s former client Jeffrey Epstein. Staley said the bank was trying to use him as a “public relations shield by asserting claims that lack any legal (or factual) basis.” JPMorgan wants Staley to forfeit eight years of compensation and cover its losses in two lawsuits: one by women who claim Epstein abused them, and another by the U.S. Virgin Islands, where Epstein had a home.
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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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- The U.S. Supreme Court dismissed a case in which Republicans sought to keep in place Title 42, a policy introduced under former President Donald Trump, that had let American officials quickly expel hundreds of thousands of migrants at the U.S.-Mexican border. The Supreme Court removed the case from its argument calendar after the DOJ said it would become moot because Title 42 would expire when a COVID-19 public health emergency ended May 11. (Reuters)
- Hyundai and Kia agreed to a consumer class-action settlement worth $200 million over rampant car thefts of the Korean automakers’ vehicles. The settlement covers about nine million U.S. owners and includes up to $145 million for out-of-pocket losses for consumers who had cars stolen, according to plaintiffs’ attorney Steve Berman of Hagens Berman. (Reuters)
- The Federal Labor Relations Authority can force the Ohio National Guard and other state militias to bargain with unions, the U.S. Supreme Court ruled, in a win for an agency that oversees labor issues in the federal workforce. Justice Clarence Thomas wrote the 7-2 decision. (Reuters)
- Bankrupt crypto exchange FTX is seeking to claw back more than $240 million it paid for stock trading platform Embed, saying former FTX insiders did no investigation before buying the essentially worthless bug-ridden software platform. FTX filed three lawsuits in Delaware bankruptcy court targeting indicted founder Sam Bankman-Fried, Embed founder Michael Giles and others, alleging Bankman-Fried and other FTX insiders misappropriated company funds to acquire stakes in Embed as part of the transaction. (Reuters)
- Charlie Javice, the young entrepreneur accused of defrauding JPMorgan Chase & Co into buying her now-shuttered college financial aid startup Frank, was indicted over claims she repeatedly lied about her company to the bank, including by claiming Frank had lined up 4.25 million student customers though the number was closer to 300,000. The indictment charges Javice with securities fraud, wire fraud, bank fraud and conspiracy and seeks the forfeiture of millions of dollars from her accounts. Javice did not respond to a request for comment. (Reuters)
- Google will pay Washington state $39.9 million to resolve a lawsuit accusing the Alphabet unit of misleading consumers about its location tracking practices. A consent order was lodged in King County Superior Court. Lawyers from Willkie Farr and Wilson Sonsini represented Google. In November, Google agreed to pay $391.5 million to resolve similar allegations by 40 U.S. states. (Reuters)
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- Erin Weber rejoined Winston & Strawn as a partner in the firm’s Chicago office. Weber had spent 19 years at Winston and was most recently a senior vice president at Reyes Holdings. (Winston)
- Ian Shawyer, head of UK firm Travers Smith’s private equity practice, joined Cleary Gottlieb as an M&A partner in London. (Cleary)
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