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Tesla and Elon Musk are seizing on an obscure and untested provision in corporate law to try to restore Musk’s $56 billion pay package, our colleagues Tom Hals and Jody Godoy write. The company wants investors to vote to approve Musk’s 2018 pay deal, which Delaware Chancellor Kathaleen McCormick struck as unfair to shareholders.
Tesla is using a section of Delaware’s corporate law that lets companies fix procedural defects that would otherwise nullify their boardroom decisions. Tesla called the approach “novel” in a securities filing. Eric Talley, a professor at Columbia Law School, said the provision is meant to be a “Band-Aid” for technical boardroom mistakes, not to undo major court rulings.
“That’s the $56 billion question,” professor Larry Hamermesh of Widener University Delaware Law School said. “Their position clearly is that all we need to do is have the stockholders say, ‘Oh, no, we, we hear you chancellor, but this is OK with us.” Tulane University professor Ann Lipton said the Tesla shareholder vote may open fresh legal challenges because it’s unclear whether Tesla can pay for past performance, which could be considered a waste of corporate assets.
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- A U.S. panel tasked with crafting sentencing policy voted in favor of curtailing the ability of judges to impose longer sentences on criminal defendants based on conduct for which they were acquitted at trial. The unanimous vote by the U.S. Sentencing Commission follows calls by members of Congress and defense lawyers to do away with the ability of federal judges to sentence defendants for “acquitted conduct,” a practice critics called unjust.
- Two NLRB attorneys did not intend to violate any law or rules while advocating for the transfer of SpaceX’s lawsuit challenging the labor board’s structure from a Texas court to one in California, a 5th Circuit panel said. But the court on a 2-1 vote said the two attorneys “made some errors” in the process and concluded “that some advice as to what is proper would be helpful to these attorneys.”
- Civil rights lawyer Carmen Iguina González at Kaplan Hecker & Fink and Joseph Palmore, co-leader of the appellate and U.S. Supreme Court practice at Morrison & Foerster were nominated to serve on the D.C. Court of Appeals, the highest local court in the nation’s capital. Palmore earlier in his career was a law clerk to the late Justice Ruth Bader Ginsburg, and Iguina González clerked for Justice Sonia Sotomayor at the high court.
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That’s how much actor Hugh Grant said he was offered by Rupert Murdoch’s News Group Newspapers to settle his claims the company, which publishes tabloid newspaper The Sun, engaged in landline tapping, burglary and other methods to obtain confidential information about him. Grant, who sued NGN alongside Prince Harry and others, said he had reluctantly settled with NGN because he could be left with a multi-million pound legal bill if he rejected the offer now, even if he later won the lawsuit. David Sherborne, the lawyer for both Grant and Prince Harry, said that the prince and other claimants also face a similar predicament and have settlements “forced” upon them.
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A closely-divided 5th Circuit declined on Tuesday to rehear a case challenging the constitutionality of the U.S. Consumer Product Safety Commission — but called upon the U.S. Supreme Court to take the case to clarify whether federal agency heads are still protected by 89-year-old precedent from the high court. If the justices eventually accept that invitation, writes Alison Frankel, the stakes will be seismic.
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“Title VII’s text nowhere establishes
that high bar.”
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—U.S. Supreme Court Justice Elena Kagan, who wrote the opinion in the court’s 9-0 decision holding that Title VII, the anti-discrimination and workplace bias statute, does not require employees to prove that discrimination caused them significant harm such as a pay cut, demotion or job loss. The court revived a lawsuit brought by a St. Louis police officer who said she was transferred to an undesirable role because of her sex. Employees need to show some harm, the court said, but Title VII does not set a significance test.
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- In Chicago, U.S. District Judge Mary Rowland will hold a status hearing in the consolidated litigation accusing major cosmetic companies Revlon and L’Oreal of making some hair-relaxer products with chemicals that increased the risk of cancer. L’Oreal and Revlon have said their products are subject to rigorous safety reviews. The court plans to address newly added defendants, in addition to motions to dismiss filed by individual defendants. Rowland wants to explore how the lawyers in the case can move ahead in an “orderly fashion” with discovery.
- U.S. District Judge Maryellen Noreika in Delaware wants the lawyers in the gun prosecution of Hunter Biden to provide her with a proposed trial schedule. Noreika last week declined to dismiss gun charges against Biden, one of the two criminal cases against President Joe Biden’s son. Hunter Biden has pleaded not guilty to lying about his use of illegal narcotics when he purchased a Colt Cobra handgun in 2018 and a third count of illegally possessing that weapon. A pretrial conference is scheduled for May 24.
- Former Mozambique finance minister Manuel Chang will ask U.S. District Judge Nicholas Garaufis in Brooklyn to dismiss an indictment alleging he participated in a fraud involving $2 billion in loans to three state-owned companies. The case focuses on financing extended to the companies for projects to develop Mozambique’s fishing industry and improve maritime security. Federal prosecutors said Chang secretly had Mozambique’s government guarantee the loans in exchange for bribes. Chang has pleaded not guilty.
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Court calendars are subject to last-minute docket changes.
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- U.S. District Judge David Joseph in Lafayette, Louisiana, dismissed a lawsuit by 19 Republican-led states challenging a rule adopted by the Biden administration that is meant to speed up the processing of asylum claims and deportations at the Mexico border. Joseph said in the ruling that while policies adopted by President Joe Biden’s administration had led to a “dramatic increase in illegal aliens entering the United States,” the states led by Florida and Louisiana lacked standing to challenge the rule.
- U.S. District Judge Jennifer Zipps in Tucson refused to block construction on a segment of Pattern Energy’s multibillion-dollar SunZia renewable energy transmission line in southeastern Arizona that would help carry wind energy to three million customers as far away as California. Zipps found Native American tribes and two environmental groups filed their January lawsuit challenging federal approvals for the massive project too late.
- Ed Sheeran’s hit song “Thinking Out Loud” was once again on the docket in a New York courtroom as the 2nd Circuit was asked to revive a copyright lawsuit claiming Sheeran illegally borrowed from Marvin Gaye’s classic “Let’s Get It On.” The panel questioned lawyers for Sheeran and plaintiff Structured Asset Sales over whether elements of Gaye’s song were copyrightable and how broadly a Manhattan federal court should have interpreted the copyright’s scope.
- Apple and its team from McDermott hit video game platform Steam with a subpoena enforcement case in U.S. court, seeking records that the iPhone maker said will help it fight a consumer antitrust class action. Steam and its parent Valve, represented by Fox Rothschild, said Apple’s demand was burdensome.
- Adidas faced tough questioning by a 2nd Circuit panel in its bid to revive a lawsuit claiming that fashion house Thom Browne ripped off the company’s iconic three-stripe trademark. The panel criticized Adidas’ argument that a Manhattan judge issued flawed instructions to the federal jury that rejected the lawsuit last year.
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