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Good morning. The justices are set to take up a pair of cases testing free speech rights in the digital age. Plus, the DOJ’s JetBlue-Spirit antitrust trial takes flight in Boston today; a judge just trimmed a copyright lawsuit against Midjourney and Stability AI; and an Idaho federal judge has some thoughts about how the 9th Circuit handled a transgender rights dispute. We’re glad you’re here – unless you like candy corn. Happy Halloween!
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REUTERS/Carlos Barria and Johanna Geron
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The U.S. Supreme Court will hear a pair of cases this morning that test whether the U.S. Constitution’s First Amendment bars government officials from blocking their critics on platforms such as Facebook and Twitter. The justices are due to weigh whether such social media activity should be deemed official action that is subject to limits on the government’s ability to restrict speech, our colleagues John Kruzel and Andrew Chung write.
In one of the cases, Jones Day’s Hashim Mooppan will argue for public school board trustees from Poway, California. They appealed a lower court’s ruling in favor of parents who sued them after being blocked from the personal accounts of the officials on X, then known as Twitter. Mooppan will face off against Stanford’s Pamela Karlan, representing the parents. The second case involves a Michigan man’s effort to revive his lawsuit challenging a Port Huron city official who blocked him on Facebook. Allon Kedem of Arnold & Porter will argue for the Michigan resident, facing Victoria Ferres of Fletcher Fealko Shoudy & Francis for the city official.
The Biden administration has sided with the officials in both cases. Former President Donald Trump’s effort to block critics from his Twitter account spurred a similar dispute. But the justices did not reach the merits of the case, finding the dispute was moot after Trump left office.
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- Winston & Strawn was sued in Houston federal court by an anti-affirmative action group over fellowships it offered to law students to help bolster diversity at the firm. Consovoy McCarthy is representing the plaintiff, American Alliance for Equal Rights, the group formed by conservative activist Edward Blum. The 900-lawyer Winston firm did not immediately respond to a comment request.
- Foley Hoag sued New York lawyer Jeffrey Liddle to recover what the firm said was more than $871,000 in unpaid legal fees. The firm represented Liddle in bankruptcy proceedings. Liddle did not immediately respond to a request for comment.
- The 5th Circuit Judicial Council approved a plan to hire a replacement for U.S. Bankruptcy Judge David Jones, who announced he will resign after admitting he was in a romantic relationship with a lawyer whose firm regularly appeared before him.
- More than a dozen progressive groups are pressing the DOJ to retreat from a new safe harbor policy that directs U.S. prosecutors not to target businesses that report misconduct they find within six months of acquiring a new company, saying it gives a “free pass” to corporate wrongdoers. Demand Progress, Public Citizen and 12 other progressive non-profit organizations and lobbying groups want Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco to reverse the policy.
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The private securities industry regulator FINRA is getting help from the U.S. Justice Department as it tries to ward off what it acknowledges to be an “existential threat” to its authority to police U.S. brokers and dealers. Alison Frankel has the story on new briefs from FINRA and the DOJ in an increasingly consequential challenge to the constitutionality of the securities industry’s centuries-old self-policing regime.
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“This could have been handled better.“
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- Lawyers for JetBlue are set to face off at trial against the DOJ in Boston federal court over the airline’s planned $3.8 billion acquisition of ultra-low cost carrier Spirit. U.S. District Judge William Young in Boston will preside over the nonjury trial. The lawsuit is the latest attempt by President Joe Biden’s administration to push back against further consolidation in industries with the fewest competitors. JetBlue is represented by attorneys from Cleary Gottlieb, Cooley and Shearman & Sterling. Law firm Paul Weiss represents Spirit.
- In Chicago federal court, U.S. District Judge Matthew Kennelly will hold a status conference in privacy litigation accusing railway BNSF of unlawfully collecting biometric information from its workers. The company, represented by Jones Day, said last month it would settle claims. The move came after Kennelly scrapped damages of $228 million and said BNSF could argue at a new trial for a lower amount. That ruling left in place a jury’s liability finding.
- The U.S. Senate’s health and labor panel will hold a hearing focused on artificial intelligence in the workplace. The panel is set to include Brad Newman, who leads the AI practice at Baker McKenzie, and Mary Kate Morley Ryan, managing director of talent and organization at Accenture. Watch the hearing.
- The New York State Commission on Legislative, Judicial, & Executive Compensation is holding a public hearing to discuss compensation for New York state judges. The commission has received submissions from judges’ groups in the state, with judges from the county courts and the state’s Supreme Courts seeking pay parity with federal judges. The commission, which has seven members appointed by the state’s governor and other officials, is established every four years. Its recommendations become law unless they are altered by state legislation.
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Court calendars are subject to last-minute docket changes.
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- U.S. District Judge Alia Moses in Del Rio, Texas, temporarily blocked federal immigration authorities from destroying razor wire placed along the border with Mexico by the state of Texas to prevent migrants from crossing the Rio Grande river. The judge barred the Biden administration from cutting or removing the wire until at least Nov. 13, as she considers a lawsuit brought by Texas Attorney General Ken Paxton, a Republican, accusing the U.S. government of illegally destroying state property. (Reuters)
- Chicago’s 75-year, $1.1 billion contract to privatize management of 36,000 parking meters will remain untouched, as the U.S. Supreme Court declined to intervene in the fight. The lawsuit from Chicago drivers sought to scrap the deal as too restrictive on the city. Chicago’s meter rates are among the highest in the country. Winston & Strawn represents Chicago Parking Meters LLC., which had prevailed in the 7th Circuit. (Reuters)
- The U.S. Supreme Court’s conservative majority appeared sympathetic to Alabama officials who defended a law that allows police to seize and impound cars after drug arrests, despite the owners having no direct ties to the alleged crime. Justice Clarence Thomas appeared skeptical of arguments that the seizures violate due process rights, and Chief Justice John Roberts questioned whether mandatory retention hearings over the property would compromise final rulings by judges on whether it should be returned. (Reuters)
- U.S. Bankruptcy Judge Brendan Shannon approved crypto exchange Bittrex’s bankruptcy plan at a court hearing in Delaware, clearing the company to emerge from bankruptcy with a wind-down plan that would pay remaining creditors in full. Bittrex filed for bankruptcy protection shortly after the SEC charged it with operating an unregistered securities exchange, choosing to shut down its U.S. operations and return assets to customers in the wake of the SEC complaint. (Reuters)
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- Cozen O’Connor added D.C.-based partner Ketan Bhirud to the firm’s state attorneys general group. Bhirud was previously at Troutman Pepper. (Cozen O’Connor)
- Epstein Becker added a team of five attorneys from Eckert Seamans to its employee benefits practice. The group includes four partners: Kathryn English, Sandra Mihok, Heather Stone Fletcher and William Carter. (Epstein Becker)
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