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Good morning. The Biden administration is facing a litigation squeeze over its Medicare drug price negotiation program, as J&J’s pharma unit became the latest to bring a lawsuit. Plus, Twitter was hit with a new legal challenge over layoff severance; Illinois’ top state court just upheld a law eliminating cash bail; and a Texas judge today is set to weigh a lawsuit from women who were denied abortions in dire situations.
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The Biden administration is now facing five lawsuits challenging a program that gives the Medicare government health insurance plan the power to negotiate lower drug prices, our colleagues report. A Covington & Burling team representing Johnson & Johnson pharmaceutical unit Janssen filed the latest case this week in New Jersey federal court.
In another lawsuit in New Jersey, drugmaker Bristol Myers Squibb is represented by a Jones Day team that includes former Trump-era U.S. solicitor general Noel Francisco. The firm also represents Merck in its lawsuit in D.C. federal district court. The pharmaceutical industry says the drug price negotiation program will curtail profits and compel drugmakers to curb development of new treatments. A spokesperson for the U.S. Department of Health and Human Services said the administration will defend a law that “is already helping to lower health care costs for seniors and people with disabilities.”
The U.S. Chamber of Commerce and industry lobby group the Pharmaceutical Research and Manufacturers of America have also sued the government over the plan. The pharma lobbyist filed its suit in Austin federal court and has a legal team that includes lawyers from Arnold & Porter. The U.S. Chamber, whose team includes King & Spalding attorneys, filed its complaint in Dayton federal court. The chamber has asked U.S. District Judge Thomas Rose to issue a preliminary injunction. A conference is scheduled in the litigation on July 25.
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- Ohio public interest lawyer Rachel Bloomekatz was confirmed to a post on the Cincinnati-based 6th Circuit federal appeals court. Bloomekatz was approved by a vote of 50-48 to the bench as Senate Democrats push to confirm judges ahead of a planned recess next month. (Reuters)
- A former Northwestern University football player sued the school and its fired head coach Patrick Fitzgerald, claiming Fitzgerald took part in harassment, hazing, bullying and assault of student athletes that the university enabled. The hazing scandal first erupted earlier this month, attracting a growing cadre of high-profile lawyers from Chicago and elsewhere. Winston & Strawn’s Dan Webb, a lawyer for Fitzgerald, said the “complaint has no validity.” (Reuters)
- Coca-Cola cannot disqualify law firm Paul Hastings from representing its opponent in a court battle based on the firm’s work for the soft-drink giant in another matter, U.S. Magistrate Judge Robert Norway in Orlando ruled. Norway said Coca-Cola signed a waiver that allowed Paul Hastings to represent SuperCooler Technologies in its lawsuit accusing Coca-Cola of stealing trade secrets related to drink-cooling technology. (Reuters)
- A 9th Circuit judge criticized legal arguments from Apple in its bid to secure more time to take the Epic Games antitrust ruling to the U.S. Supreme Court. Judge Milan Smith in an order said Apple had made arguments based on “imagined panel opinion on an imagined record.” Still, the court approved a 90-day window for Apple to ask the justices to overturn an injunction that would require the iPhone maker to allow certain changes to its App Store payment practices. (Reuters)
- The retired U.S. bankruptcy judge overseeing the $2.5 billion Boy Scouts abuse settlement sued Allianz, Liberty Mutual and other insurers over their alleged refusal to cover claims arising from the scandal. Attorneys from Gilbert and Texas firm Tillotson Johnson & Patton represent Barbara Houser in her complaint in the Northern District of Texas. Some insurers have opposed the Boy Scouts bankruptcy settlement, saying it puts them on the hook for paying “thousands of invalid and questionable claims.”
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That’s how many states — New Jersey, standing alone — where the phrase “Taco Tuesday” cannot be used in commerce. Fast-food chain Taco John’s has now told the U.S. Patent and Trademark Office that it would abandon its federal “Taco Tuesday” trademark. Taco Bell had asked the USPTO in May to cancel the trademark, calling it a common phrase that Taco John’s had monopolized unfairly in the restaurant industry. Taco John’s CEO Jim Creel said “paying millions of dollars to lawyers to defend our mark just doesn’t feel like the right thing to do.” Taco John’s owned the right to use the “Taco Tuesday” name in commerce in every state except New Jersey, where it is still owned by Gregory’s Restaurant & Bar in Somers Point along the Jersey Shore. A separate Taco Bell challenge to that trademark is still pending.
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A class of photographers whose Instagram photos were embedded by other websites failed to convince a three-judge panel at the 9th Circuit to set aside controversial precedent in order to hold Instagram liable for copyright infringement. But the panel also said that the photographers had raised “serious and well argued” policy concerns about copyright holders’ ability to control and profit from their work. The next step, Alison Frankel predicts, is likely an en banc petition.
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“A single unwanted call is one too many.“
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—Samuel Levine, director of the FTC consumer protection bureau, announcing a nationwide crackdown to stop companies from inundating people with billions of unwanted and illegal robocalls and telemarketing calls. The FTC and more than 100 other federal and state law enforcement authorities, including the attorneys general of all 50 states and D.C., are participating in the crackdown, known as Operation Stop Scam Calls. More than 180 enforcement actions and initiatives are part of the initiative.
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- A Texas state judge will consider a lawsuit from a group of women who said they were denied abortions despite grave risk to their lives. The lawsuit, filed by the Center for Reproductive Rights, appeared to be the first from pregnant women suing over curbs imposed after the U.S. Supreme Court overturned Roe v. Wade. The reproductive rights group said the court will weigh whether to block Texas abortion restrictions as they apply to dangerous circumstances. Lawyers from Morrison & Foerster also represent the plaintiffs.
- U.S. District Judge William Orrick in San Francisco will consider Stability AI, Midjourney and DeviantArt’s requests to dismiss a lawsuit brought by a group of artists who say the companies misused their work to train their image-creating generative AI systems. Attorneys from Latham represent DeviantArt, and Cooley is defending Midjourney. The firms Lex Lumina and Fried Frank represent Stability AI. Lawyers from Joseph Saveri Law Firm and Lockridge Grindal Nauen represent plaintiffs.
- U.S. District Judge Jon Tigar in Oakland, California, will hear a challenge from immigration advocates to a U.S. regulation restricting access to asylum at the U.S.-Mexico border. The Biden regulation “dramatically curtails the availability of asylum in the United States” and mirrored similar Trump-era policies blocked in court, according to the challengers, represented by the ACLU. Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, will argue the summary judgment motion on behalf of the plaintiffs.
- SEC Chair Gary Gensler will testify before the U.S. Senate Committee on Appropriations about the Wall Street regulator’s proposed budget for the 2024 fiscal year. Gensler said this week said the agency was “disappointed” with a Manhattan federal judge’s ruling that Ripple Labs did not violate federal securities laws. Gensler said his agency was still assessing the court’s decision.
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Court calendars are subject to last-minute docket changes.
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- A California Supreme Court ruling could pave the way for more lawsuits by nonprofit groups and unions. The justices said a lobbying group for doctors can pursue a challenge to an Aetna unit’s physician referral policy. Organizations have standing to sue for unfair competition under state law when they expend money and time to address potentially illegal conduct on behalf of their members, the justices said. (Reuters)
- The top Illinois state court upheld a 2021 state law that eliminated cash bail and ordered that it take effect in September, clearing the way for the state to implement one of the most sweeping bail reforms in the nation. Several other states, including New Jersey, New York and California, have taken steps to reduce the use of cash bail, in which defendants charged with certain offenses can pay money to secure their freedom until their trial begins. (Reuters)
- Hawaiian artist Johnson Enos sued Disney in Los Angeles federal court, accusing the entertainment giant of copying his musical sea-turtle character Honu for a similar character at its Hawaiian resort. Enos said Disney ripped off his work to create the “strikingly similar” ‘Olu Mel, who like Honu is a blue-eyed sea turtle that plays the ukulele. A Disney representative did not immediately respond to a request for comment. (Reuters)
- Two conservation groups asked a Nevada federal judge to temporarily block U.S. approvals allowing a Canadian mining company to explore Nevada for lithium. The Center for Biological Diversity and the Amargosa Conservancy said blocking the U.S. Bureau of Land Management approvals is necessary to avoid irreparable harm to endangered fish, wild flowers and sheep that rely on the Meadows National Wildlife Refuge 100 miles northwest of Las Vegas. (Reuters)
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- Debevoise hired Josh Cohen and Abraham Tabaie as litigation partners in the firm’s San Francisco office. Cohen, who focuses on white-collar and regulatory matters, arrives from Clarence & Dyer. Tabaie, who was previously at Skadden, works on commercial matters. (Reuters)
- Sidley added Vadim Brusser as a D.C.-based antitrust partner. Brusser was previously at Weil Gotshal. (Sidley)
- Womble Bond Dickinson hired Carol Lee as a business litigation partner in D.C. Lee was previously at Clifford Chance. (Womble)
- Bryan Cave Leighton Paisner added Seattle-based litigation partner Farron Curry. She was previously at Schwabe Williamson & Wyatt. (BCLP)
- Troutman Pepper hired regulatory and investigations partner Jean Gonnell in the firm’s Charlotte, North Carolina, office. Gonnell, who focuses on cannabis law, joins from her firm Gonnell Law. (Troutman Pepper)
- Greenberg Traurig brought on New York-based partner Thomas Pease, who focuses on intellectual property litigation. Pease joined the firm from Quinn Emanuel. (Greenberg Traurig)
- Eversheds Sutherland added E. Patrick Gilman as a D.C.-based partner focused on corporate crime and investigations. Gilman was previously at Brown Rudnick. (Eversheds)
- Foley & Lardner added securities and litigation partner Kevin Burke in New York. He was previously at Sidley. (Foley & Lardner)
- Schulte Roth added John Nowak as a white-collar and securities partner in the firm’s New York office. Nowak was previously at Paul Hastings. (Schulte Roth)
- Cole Schotz brought on Daniel Harris as a partner in the Hackensack, New Jersey, office. Focused on bankruptcy and corporate restructuring, Harris arrives from Sills Cummis & Gross. (Cole Schotz)
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There’s a high chance now that Donald Trump will be indicted for the events of January 6, 2021, writes Kevin O’Brien of Ford O’Brien. Prosecutors, O’Brien writes, could possibly bring a host of crimes around presidential succession against him, including conspiracy to interfere with a lawful government function. Trump’s legal exposure increased for a few reasons.
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