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Good morning. Nasdaq’s board diversity rule survived a legal challenge in a U.S. appeals court, which said the SEC acted within its power in approving the regulation. Plus, some 3,500 bankruptcy cases have been reassigned in the fallout of a Houston judge’s resignation amid an ethics scandal; Foley & Lardner’s chairman lost his bid to bar Quinn Emanuel from questioning him in a fee dispute; and music publishers are suing AI company Anthropic over song lyrics. The LSAT is ditching its logic games — but it’s true, without exception, that today is just one day before the work week’s end. Thanks for reading!
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A 5th Circuit panel upheld Nasdaq’s board diversity rule requiring that companies listed on the exchange to have women and minority directors on their boards or explain why they do not, our colleague Jody Godoy writes. The New Orleans based U.S. appeals court spurned lawsuits seeking to block the rule by the National Center for Public Policy Research and the Alliance for Fair Board Recruitment, a group formed by conservative legal activist Edward Blum.
In a 52-page ruling, the appeals court said the SEC acted within its authority in approving the rule and was allowed to consider the opinions of investors who said board diversity information was important to their investment decisions.
“This evidence is sufficient to support the SEC’s determination that regardless of whether investors think that board diversity is good or bad for companies, disclosure of information about board diversity would inform how investors behave in the market,” Circuit Judge Stephen Higginson wrote for the panel.
Blum was instrumental in the U.S. Supreme Court’s June decision rejecting affirmative action in collegiate admissions. Another Blum group, American Alliance for Equal Rights, has sued a venture capital fund that supports Black women who own small businesses, accusing it of unlawful racial discrimination. The group pushed two major law firms to alter diversity fellowship criteria, and it said it was investigating three other law firms over their diversity initiatives. Blum called the 5th Circuit’s ruling disappointing and said his group plans to appeal.
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- The chairman and chief executive of law firm Foley & Lardner must sit for questioning in an attorney legal-fee dispute tied to the dissolution of defunct firm LeClairRyan, U.S. Bankruptcy Judge Kevin Huennekens in Richmond, Virginia, ruled. Foley had sought to block the deposition of Daljit Doogal. Quinn Emanuel, serving as special litigation counsel to the trustee of the LeClairRyan estate, opposed the effort to bar Doogal’s deposition. (Reuters)
- Jones Day associate Elliot Gaiser, who clerked for Justice Samuel Alito, was named incoming Ohio solicitor general, succeeding former Jones Day associate Benjamin Flowers, who left this month. Flowers is now at law firm Ashbrook Byrne Kresge. Gaiser also clerked for Judge Edith Jones on the 5th Circuit. (Reuters)
- U.S. Circuit Judge Thomas Hardiman in a speech at Harvard urged the U.S. Supreme Court to revisit how it interprets the U.S. Constitution’s prohibition on cruel and unusual punishment and “return to the text and original meaning of the Eighth Amendment.” Hardiman argued the court should abandon a decades-old legal test for deciding if a punishment was unconstitutional. (Reuters)
- Acting U.S. Attorney Joshua Levy in Massachusetts was nominated to succeed former U.S. Attorney Rachael Rollins, who resigned in May after government watchdog agencies found she engaged in wide-ranging misconduct. The Biden White House also named two candidates to be district court judges in Oklahoma. (Reuters)
- Attorneys told a Chicago federal court that The Children’s Place failed to meet the “extremely high burden” required to sanction them for a lawsuit alleging the company sold contaminated school uniforms. The attorneys urged the court to reject a sanctions motion filed by the company last month that claimed the lawsuit wasn’t backed by good evidence. (Reuters)
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A Philadelphia federal MDL judge last December tossed nearly 1,200 cases alleging that Merck’s shingles vaccine actually caused plaintiffs to develop the disease. The judge said plaintiffs hadn’t complied with a so-called Lone Pine order requiring them to produce lab reports linking their virus to the Merck vaccine. Plaintiffs appealed, arguing that the judge knew they could provide after-the-fact lab test results and should have allowed them to offer alternative evidence. Alison Frankel reports on the 3rd Circuit case that could put limits on MDL courts’ use of Lone Pine orders.
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“This decision might help some,
and it hurts none.”
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—Kellye Testy, president and CEO of the Law School Admission Council, remarking on the organization’s move to drop the so-called “logic games” section of the Law School Admission Test. The analytical reasoning section — the formal name for logic games — will be replaced with an additional logical reasoning section in August 2024. Logic games are viewed by many as the most difficult section of the exam to master. Read more about why the LSAC is ditching the section, in a major change to the exam’s content.
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- Video-game maker Electronic Arts will ask U.S. District Judge Haywood Gilliam Jr to dismiss a lawsuit brought by the BrandR Group, a college sports licensing collective that has accused EA of failing to pay it to license schools and athlete likenesses for its upcoming college football game. EA, represented by Keker Van Nest, argues that it is not required to go through Brandr instead of entering into licenses with the schools and athletes themselves. Attorneys from Katten Muchin represent BrandR.
- The Judicial Conference’s Advisory Committee on Appellate Rules is scheduled to meet in D.C., and the agenda includes more consideration of whether to require greater disclosure from outside groups that file friend-of-the-court briefs in cases. The committee has weighed potential amendments to disclosure rules for several years.
- 2nd Circuit Judge Richard Sullivan and 3rd Circuit Judge Stephanos Bibas are slated to speak at an event hosted by the Harvard Federalist Society on the role of mercy in the judicial system.
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Court calendars are subject to last-minute docket changes.
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- An Alaska state agency sued the Biden administration in D.C. federal court over its decision to cancel oil and gas leases in the state’s North Slope, one of the country’s largest reserves of pristine federal land. The lawsuit challenges the U.S. Interior Department’s decision to scrap seven oil and gas leases in Alaska’s 19 million-acre Arctic National Wildlife Refuge. (Reuters)
- The Boy Scouts of America received court approval to pay about $245 million in fees to lawyers and financial advisers who crafted the youth organization’s $2.46 billion settlement of sex abuse claims. U.S. Bankruptcy Judge Laurie Selber Silverstein in Wilmington, Delaware, mostly approved final fee applications from more than two dozen law firms and advisers who worked on the bankruptcy case. (Reuters)
- The 9th Circuit revived a shareholders’ proposed class action accusing Meta of concealing sweeping misuse of Facebook users’ data in 2017 and 2018. The appeals court ruled 2-1 in restoring shareholders’ claim that the company falsely said that user data “could” be compromised, when the company at the same time was already aware that the UK-based consulting firm Cambridge Analytica had violated its privacy policies, shareholders allege. (Reuters)
- Google called its first witness in a once-in-a-generation U.S. antitrust trial. Pandu Nayak, a vice president for search, testified about the efforts that Google has made to index the web, culling out irrelevant pages and ranking websites in order to answer user queries with sources that are relevant and reliable. He also testified about how Google used machine learning tools that it developed to improve its search. (Reuters)
- Sidley Austin’s Virginia Seitz is representing pro baseball’s players’ union in backing a legal challenge at the U.S. Supreme Court that seeks to erase the big league’s long-standing exemption to U.S. antitrust law. The union asked the court to take up a petition from minor league clubs fighting MLB’s “sweeping immunity.” Pro baseball’s legal team at Sullivan & Cromwell prevailed in the 2nd Circuit. (Reuters)
- A U.S. judge spurned a request from meat industry data provider Agri Stats to seal the DOJ’s complaint in Minnesota federal court alleging violations of antitrust law. U.S. District Judge John Docherty ruled that the “presumption of public access” was heightened for access to lawsuits and other documents central to a case. The DOJ had denied violating rules governing the disclosure of information in antitrust litigation.
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