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Good morning. The battle over transgender rights has moved from state legislatures to courtrooms, with major hearings in several cases slated for this week. Plus, Ken Paxton is reinstated as Texas attorney general after his impeachment acquittal, and a Dow Chemical subsidiary says it shouldn’t be on the hook for hundreds of millions in cleanup costs after the East Palestine derailment. The courts are busy this week – we’ll be busy, too!
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Major hearings on transgender rights cases fill court calendars
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Litigation over laws governing transgender medical care and school policies on transgender students is heating up in states across the country, with major hearings and decisions in cases happening nearly every day.
This week, multiple cases over transgender healthcare are scheduled for hearings. Today, a Montana state court judge is slated to consider whether to temporarily block the state’s ban on transgender healthcare for youth under 18. On Thursday, the 4th Circuit, sitting en banc, will consider whether North Carolina’s state health insurance plan and West Virginia’s Medicaid program can bar coverage for trans healthcare.
Last week, a federal judge in San Diego blocked a California school district from making two Christian teachers abide by a policy requiring staff to keep their students’ transgender or gender nonconforming identities from parents. Just a day before, the 1st Circuit heard arguments as it weighs whether to revive a lawsuit over a similar policy in a Massachusetts school.
Earlier this month, U.S. District Judge Sarah Geraghty in Atlanta allowed the state of Georgia to resume enforcing a new ban on hormone replacement therapy for transgender people under age 18, after a federal appeals court allowed a similar law in Alabama to go back into effect.
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- Pauline Newman, the 96-year-old Federal Circuit judge who is fighting a probe into her mental fitness, spoke at a Washington, D.C., conference to urge more scrutiny into how patent law could affect the development of vaccines and other groundbreaking technologies. (Reuters)
- The University of Idaho will pay former law professor Shaakirrah Sanders $750,000 to settle her four-year-old discrimination lawsuit. Sanders, who is Black, sued the law school and its former leaders alleging she had been passed over for leadership roles and denied raises that were offered to white male colleagues. A university spokesperson and the former law school leaders did not immediately respond to requests for comment. (Reuters)
- U.S. District Judge Leonie Brinkema declined to order DOJ official Jonathan Kanter to stay out of the government’s advertising antitrust lawsuit against Google but said the department “should think about it.” Google in November 2021 asked the DOJ to consider requiring Kanter, assistant attorney general in charge of antitrust, to recuse himself because of his work for Google critics. (Reuters)
- Speaking at a Birmingham, Alabama, church where four Black girls were killed by white supremacists in a 1963 bombing, U.S. Supreme Court Justice Ketanji Brown Jackson called for a commitment to remember and teach the history of racism and violence in the United States. (Reuters)
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That is the income amount that Henry Liu, who was appointed in August as director of the FTC’s competition bureau, earned from the beginning of last year through mid-August as a partner at Covington & Burling. In an ethics filing, Liu disclosed the income and clients that included Apple, Eli Lilly, JPMorgan Chase, Visa, SoftBank Group, Procter & Gamble and Bayer’s U.S. affiliate. Liu spent 14 years at Covington, where he was a partner in its litigation and antitrust practices.
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Hankering for a new U.S. Supreme Court jurisdictional puzzle? BASF Metals and ICBC Standard Bank have got you covered. The two companies filed a petition this week that asks the Supreme Court to decide whether courts can assert jurisdiction over defendants that have had no contact with the forum in which they were sued — but are accused of participating in a conspiracy with other defendants who have such contacts. The 2nd Circuit says the answer to that question is yes. BASF and ICBC want the Supreme Court to hold otherwise. Alison Frankel has the story.
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″David Kendall has had a checkered legal career.″
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- U.S. Judge Richard Andrews in Wilmington, Delaware, will oversee a jury trial starting today in a case in which ViaTech, a small technology company, accuses Adobe of patent infringement. Adobe, represented by lawyers at Richards, Layton & Finger and Perkins Coie, will defend against claims that certain of its software products infringe a ViaTech patent related to technology for digital content licensing and management. ViaTech is represented by lawyers at Ashby & Geddes and Bunsow De Mory.
- Illinois eliminates cash bail in its criminal justice system as the SAFE-T Act takes effect today. The Illinois Supreme Court upheld the constitutionality of the controversial law in July after prosecutors in dozens of the state’s counties challenged it. Under the law, judges cannot set any bail, but they can order defendants charged with certain serious crimes to be jailed until trial if prosecutors can show they either pose a danger to the public or are likely to flee the state.
- As part of the National Constitution Center’s Constitution Day celebrations, U.S. Circuit Judges Marjorie Rendell, Cheryl Ann Krause, and Stephanos Bibas of the 3rd Circuit are slated to speak about how judges approach cases by reviewing the seven different methodologies of constitutional interpretation.
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Court calendars are subject to last-minute docket changes.
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- On Tuesday, the 2nd Circuit will hear arguments in Sam Bankman-Fried’s bid to get out of jail ahead of his Oct. 3 fraud trial. Bankman-Fried, who is facing charges related to the collapse of crypto exchange FTX, was jailed in August after U.S. District Judge Lewis Kaplan found that he likely tampered with witnesses at least twice. Bankman-Fried, who has pleaded not guilty, has said the conditions of his confinement at Brooklyn’s Metropolitan Detention Center have made it impossible for him to adequately review prosecutors’ evidence against him and help his lawyers build his defense case. Kaplan rejected those arguments last week.
- On Wednesday, the 5th Circuit is slated to hear the U.S. Chamber of Commerce’s challenge to the SEC’s new share buyback rule. The Chamber, represented by Noel Francisco at Jones Day, says the SEC’s rule improperly saddles companies that seek to buy back their own shares with onerous disclosure requirements and accused the regulator of pushing through the rule too quickly. The SEC says the rule is a modest update to existing disclosure requirements and that it took enough time to consider industry comments before approving it.
- On Thursday, a former University of Kansas professor will urge the 10th Circuit to overturn his conviction for making a false statement related to work he was doing in China in a case that stemmed from a Trump-era DOJ crackdown on Chinese influence within American academia. A jury convicted Feng “Franklin” Tao of concealing work he did in China while conducting U.S. government-funded research, but most of the convictions were thrown out last year after a Kansas City federal judge said prosecutors hadn’t presented enough evidence to support the jury’s findings. The judge upheld his conviction on one count of making a false statement.
- On Friday, New York Justice Arthur Engoron will hold a hearing on summary judgment motions in New York Attorney General Letitia James’ fraud lawsuit against former President Donald Trump and his family business. But the trial in the case, slated for Oct. 2, is on a temporary hold after Trump sued Engoron, accusing him and James of defying a court order that could narrow the lawsuit, according to a report in the Daily Beast.
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Court calendars are subject to last-minute docket changes.
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- A unanimous 5th Circuit panel said a Texas prison guard’s rights were violated when he was fired for refusing on religious grounds to cut his hair and beard, in one of the first rulings of its kind since the U.S. Supreme Court bolstered the rights of religious workers. The court said the Texas Department of Criminal Justice had not shown that allowing Elimelech Shmi Hebrew, who follows a sect of Judaism that bars adherents from cutting their hair, to keep his hair long would pose an undue hardship on prison operations. (Reuters)
- A Dow subsidiary and its attorneys from Thompson Hine told an Ohio federal court that it should not have to help cover costs that could exceed $500 million to clean up a toxic chemical spill from the February derailment of a Norfolk Southern-operated train in East Palestine, Ohio. Dow Chemical argued it cannot be held liable because its railcar on the train that crashed did not cause the crash and was not carrying hazardous substances at the time of the derailment. (Reuters)
- A lawyer for the U.S. Chamber of Commerce urged a federal judge to block President Joe Biden’s administration from implementing a new program that would let Medicare negotiate prices with pharmaceutical companies for selected costly drugs, saying the program would likely result in prices that are “unfair.” Jeffrey Bucholtz, the business group’s attorney, told U.S. District Judge Michael Newman in Dayton, Ohio, that the program violated drug makers’ due process rights by giving the government the power to effectively dictate prices for their medicines. The DOJ countered that the program is not compulsory. (Reuters)
- Carrie Tolstedt, the former head of Wells Fargo’s retail bank, avoided prison time after pleading guilty to an obstruction charge related to the bank’s sweeping fake-accounts scandal. Tolstedt was sentenced to three years of probation including six months of home confinement and ordered to pay a $100,000 fine by U.S. District Judge Josephine Staton in Los Angeles. (Reuters)
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- McDermott hired Kate Vera as a partner to lead its New York employee benefits and executive compensation practice. She arrives from Kirkland. (Reuters)
- Covington brought on e-discovery litigator Leeanne Mancari as a partner in Los Angeles. Mancari most recently was at DLA Piper. (Covington)
- Husch Blackwell added energy and natural resources partner Brenda Barrett. She joins the firm in Austin from Jennings, Strouss & Salmon. (Husch Blackwell)
- Rimon added New York-based partner Harold Nathan, who works on M&A, banking and finance, and real estate matters. He most recently was at ArentFox Schiff. (Rimon)
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