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Good morning. The U.S. Supreme Court issued its much anticipated ruling on the role of state courts and legislatures in elections – and more election law fights are likely to come. Plus, Federal Circuit Judge Pauline Newman wants to return to hearing cases amid an investigation into her competency and conduct, and a judge seems likely to send Donald Trump’s New York criminal case back to state court. Stay cool out there.
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The U.S. Supreme Court has rejected a legal theory that would have increased state legislatures’ control over elections, but the ruling has left ample room for future election-related fights, reports Andrew Chung.
Chief Justice John Roberts wrote the court’s 6-3 decision rejecting the “independent state legislatures” legal theory favored by many conservatives that would have handed sweeping power to state legislatures to establish rules for presidential and congressional elections and draft electoral maps giving huge advantages to the party already in control. The court said the U.S. Constitution’s Elections Clause can’t be interpreted to remove any role of state courts and state constitutions in regulating federal elections.
The ruling still puts the Supreme Court or other federal courts in a position to second-guess state courts in certain types of election-related cases. Roberts, while rejecting the legislators’ main arguments, cautioned that “state courts do not have free rein” to undermine power that the U.S. Constitution gives state legislatures to craft election rules.
Roberts stopped short of announcing a legal test for determining when a state court has ventured too far, but that conclusion could still give politicians another chance to defend contested rules or maps.
The issue is “sure to be back at the court in future years, when state courts reject legislatively drawn maps and take it upon themselves to draw districts,” said Michael Dimino, a professor at Widener University Commonwealth Law School in Pennsylvania.
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- Paul Weiss has been sued for legal malpractice in a family dispute over the $258 million sale of a 24-story Midtown Manhattan office building. New York investment manager and art collector Randolph Slifka, who unsuccessfully sued his aunt Barbara Slifka in 2017 to stop her from selling the office building at 477 Madison Ave, claims the law firm took advantage of his “elderly, infirm, and inexperienced” aunt. (Reuters)
- Federal Circuit Judge Pauline Newman asked a D.C. federal judge to stop her suspension from hearing cases amid the circuit’s investigation into her competency and conduct. Lawyers for the 96-year-old judge said in a court filing that her suspension without a misconduct finding is unconstitutional and reiterated her argument that she is fit to serve, citing a recent neurological exam that “revealed no significant cognitive deficits.” (Reuters)
- Partner Heather McDevitt will take over as White & Case’s next chair on Sept. 1, replacing longtime leader Hugh Verrier, who was first elected chairman in 2007. McDevitt, who joined the firm in 2002, is a commercial litigator and led its pharmaceutical and healthcare global industry group from 2013 to 2019. (Reuters)
- Georgia’s top election official, Brad Raffensperger, is scheduled to answer questions from federal investigators examining former President Donald Trump’s efforts to overturn the 2020 presidential election. Raffensperger, Georgia’s Republican secretary of state, will likely be asked about a phone call he received from Trump in January 2021, in which Trump was recorded asking Raffensperger to “find” enough votes to reverse President Joe Biden’s victory in the state. The investigation is one of two overseen by Special Counsel Jack Smith, who was appointed last year by Attorney General Merrick Garland. (Reuters)
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The plaintiffs lawyer who filed a class action accusing Elon Musk and Tesla of reaping billions through insider trading in Dogecoin crypto currency filed a motion this week to disqualify Quinn Emanuel from representing the Tesla CEO and the company. A big chunk of the motion, writes Alison Frankel, is dedicated to rebutting a June 15 New York Post story that, in turn, described a June 9 letter in which defense counsel Alex Spiro of Quinn Emanuel threatened to seek sanctions against the plaintiffs lawyer, Evan Spencer, for filing a “demonstrably false” amended complaint. Spencer filed both the Post story and the previously unpublished Spiro letter as exhibits — thereby creating an avid new audience for both. Frankel asks whether Spencer’s strategy of bringing a juicy disqualification motion to refute accusations that his claims are shaky actually hurts the case more than it helps.
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“Niemann’s alleged individualized professional and reputational injuries are not the type that the antitrust laws were intended to prevent.“
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—–U.S. District Court Judge Audrey Fleissig in Missouri, who dismissed U.S. chess prodigy Hans Niemann’s $100 million defamation lawsuit alleging Norwegian grandmaster Magnus Carlsen and Chess.com falsely accused him of cheating. Fleissig rejected Niemann’s claims that Carlsen and Chess.com broke antitrust laws by colluding to exclude him from lucrative tournaments. Neimann’s lawyers said they would pursue his claims in state court.
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- In the 3rd Circuit, Judges Kent Jordan, L. Felipe Restrepo and D. Brooks Smith will hear a dispute over restrictions on certain young adults in Pennsylvania from carrying firearms. Three individuals and two organizations — Second Amendment Foundation and Firearms Policy Coalition — sued over the regulations. Daniel Mullen of the Pennsylvania attorney general’s office will argue for the state. Mullen, arguing there is no pending controversy, told the appeals court this month that recent developments now mean “18-to-20-year-olds currently have the ability to openly carry firearms throughout the Commonwealth of Pennsylvania.” Cooper & Kirk’s David Thompson will argue for the plaintiffs.
- Microsoft’s lawyers and attorneys for the FTC will resume their face-off in San Francisco federal court over the agency’s bid to stop the technology company’s $69 billion plan to buy video game maker Activision. U.S. District Judge Jacqueline Scott Corley is presiding over an evidentiary hearing focused on the deal, which would be the largest-ever in the gaming industry. Corley earlier declined to block the planned purchase in a related private civil lawsuit brought by a group of video gamers. Microsoft and its lawyers, including Beth Wilkinson of Wilkinson Stekloff, contend the deal will benefit consumers. Other international regulatory agencies also are weighing the deal.
- U.S. District Judge Catherine Eagles is holding a hearing on Planned Parenthood’s bid to temporarily block North Carolina’s law banning abortions after 12 weeks of pregnancy as unconstitutional. Republicans Phil Berger, president pro tem of the state Senate, and North Carolina House Speaker Timothy Moore have asked to intervene in the lawsuit to defend the law. The ACLU is representing Planned Parenthood.
- The Federal Circuit Bar Association’s Bench and Bar Conference kicks off in Colorado Springs, Colorado. Colorado Attorney General Phil Weiser is listed as one of the event’s speakers, as is Federal Circuit Judge Tiffany Cunningham.
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Court calendars are subject to last-minute docket changes.
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- U.S. Bankruptcy Judge Vincent Papalia in Newark, New Jersey, approved Overstock.com’s $21.5 million purchase of Bed Bath & Beyond’s brand name, intellectual property and ecommerce platform. Overstock emerged as the winning bidder for the company’s intellectual property, but Bed Bath & Beyond stores and inventory are not part of the deal. (Reuters)
- The U.S. Supreme Court threw out the stalking conviction of a Colorado man after finding that prosecutors hadn’t shown he understood the barrage of Facebook messages he sent to a singer songwriter were threatening. The 7-2 decision, authored by liberal Justice Elena Kagan, vacated a lower court’s ruling that had rejected defendant Billy Counterman’s claim that his messages were protected speech under the U.S. Constitution’s First Amendment. (Reuters)
- U.S. District Judge Lewis Kaplan in Manhattan rejected Sam Bankman-Fried’s bid to throw out most of the U.S. government’s criminal case accusing him of stealing billions of dollars in FTX customer funds to plug losses at his Alameda Research hedge fund. Bankman-Fried, who has pleaded not guilty and denied stealing funds, in May asked Kaplan to dismiss at least 11 of the 13 fraud and conspiracy charges he faced. Kaplan’s decision paves the way for an Oct. 2 trial. (Reuters)
- The South Carolina Supreme Court appeared open to upholding a new state law banning abortion after about six weeks of pregnancy, months after it blocked a similar ban. The court ruled 3-2 in January that an earlier abortion law violated the right to privacy guaranteed by the state constitution, but at oral arguments over the new law Justice John Kittredge said that the court was “not locked in” to its earlier decision. (Reuters)
- A New York appeals court narrowed state Attorney General Letitia James’ civil lawsuit accusing Donald Trump and his family business of a “staggering” fraud, and dismissed all claims against Ivanka Trump. While rejecting Trump’s bid to dismiss the case, the Appellate Division in Manhattan said statutes of limitations prevented James from suing over certain transactions. The court also said all claims against Trump’s eldest daughter should be dismissed because they were too old. (Reuters)
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- Rachael Lamkin, who has run a solo patent litigation-focused practice since 2016, joined Baker Botts’ IP practice as a partner in its San Francisco office. (Reuters)
- Joseph Braunreuther, former deputy general counsel of Johnson & Johnson, joined McCarter & English as a partner. Braunreuther will be based in the firm’s Newark office. (McCarter & English)
- McDermott added Stephen Reynolds as a Chicago-based regulatory partner focused on privacy and cybersecurity. Reynolds was previously at Baker McKenzie. (McDermott)
- Eversheds hired Atlanta-based partner Todd Silliman in the firm’s global energy group. He was previously co-chair of Dentons’ U.S. environment and natural resources practice. (Eversheds)
- Norton Rose Fulbright added IP litigation lawyer John McBride as a partner in the firm’s Chicago office. McBride was previously a partner at Sidley Austin. (Norton Rose)
- Commercial litigator Peri Berger joined Saul Ewing’s New York office as a partner from Harris Beach. (Saul Ewing)
- DLA Piper added corporate and securities litigation partner Richard Zelichov in the firm’s Los Angeles office. Zelichov was previously at Katten Muchin. (DLA Piper)
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Four recent cases at the Federal Circuit signal significant changes to long-standing jurisdictional precedent in bid protests and Contract Disputes Act claims, write Richard Arnholt and Adam Briscoe of Bass, Berry & Sims. The authors discuss the cases and clarify the requirements contractors must follow to avail themselves of the right to appeal a government decision under the CDA. Here are the takeaways.
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