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Good morning. The federal judiciary’s committee on civil rules is examining a proposal that would direct judges on how to handle MDLs — and, companies hope, cull meritless lawsuits early on. Plus, the Florida bar is considering whether lawyers need client consent before using AI tools; the DOJ is defending its disclosures of business info in an antitrust lawsuit; and a San Francisco judge will take up a key early hearing in Elon Musk’s $90 million lawsuit against Wachtell.
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Defense lawyers and major corporations are urging a U.S. judicial panel to strengthen a proposed rule that would for the first time govern federal mass torts cases, saying it did not go far enough to weed out “meritless” lawsuits, Nate Raymond writes. The federal judiciary’s Advisory Committee on Civil Rules just held its first public hearing on the proposed new rule.
The draft rule says judges should schedule initial hearings to develop case management plans once they are assigned cases by the Judicial Panel on Multidistrict Litigation, and encourages the appointment of plaintiffs’ leadership counsel. The rule was first proposed in March, and Monday’s hearing was the first of three planned.
Defense lawyers and two drug companies at the hearing said the proposed rule contained no actual requirements but mere advice for judges and that it failed to address their main concern: that a rule was needed to prevent people from filing claims in MDLs that lacked factual support. James Shepherd of Shook Hardy said it was “a weak and frail and feeble rule.”
More than 30 legal officers at top companies said in a letter to the committee that they want a rule governing management of MDLs to include a directive that plaintiffs’ counsel demonstrate “basic due diligence into plaintiffs’ claims, such as evidence of exposure to the alleged cause and a resulting injury, early in the case.”
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- A Florida Bar committee is seeking input from members as it crafts a new advisory opinion focused on the use of AI. Bar leaders tasked the committee with creating guidelines around the use of generative AI, such as OpenAI’s ChatGPT, Google Bard or Microsoft’s Bing. Some federal judges require lawyers to disclose when they have used artificial intelligence in matters that appear on their dockets. (Reuters)
- U.S. District Judge M. Casey Rodgers in Pensacola, Florida, warned of an identity theft scam targeting U.S. military veterans and service members potentially covered by 3M’s $6 billion settlement of more than 200,000 lawsuits alleging its earplugs caused hearing damage. Rodgers said claimants had received calls from “bad actors” posing as the settlement administrator asking for sensitive personal information. (Reuters)
- Kirkland is serving as counsel to debt-laden Rite Aid as the drugstore chain seeks U.S. bankruptcy protection in New Jersey amid pressure from lawsuits alleging that it helped fuel the U.S. opioid crisis. Rite Aid joins several companies, including Mallinckrodt, that have filed for bankruptcy due to lawsuits over the U.S. opioid crisis. (Reuters)
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Former president Donald Trump and his defense counsel in the DOJ’s case accusing him of illegally attempting to overturn his defeat in the 2020 presidential election have repeatedly told television interviewers that Trump was merely following guidance he received from his lawyers. But asserting a formal “advice-of-counsel” defense carries some significant risks for Trump, as a recent brief from prosecutors in Special Counsel Jack Smith’s office makes clear. Alison Frankel explains why.
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“No other criminal defendant would be allowed to do so, and I’m not going to allow it
in this case.“
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- Lawyers for Wachtell will ask a San Francisco Superior Court judge to push into arbitration the lawsuit that X Corp filed against the firm. Musk sued Wachtell in July to recover most of a $90 million fee the firm received from Twitter, now known as X, for defeating Musk’s bid in Delaware court to walk away from his $44 billion buyout of the social media company. Morrison & Foerster is defending Wachtell, and X hired Reid Collins & Tsai to bring the complaint. The lawsuit offered an early peek at Wachtell’s riches. The San Francisco court issued a tentative ruling granting the firm’s request for arbitration.
- The federal Judicial Conference’s Advisory Committee on Civil Rules’ meeting agenda includes a recommendation to take no action on a judge’s suggestion that the courts end the practice of allowing court filings up until midnight on the day they are due. That recommendation came from 3rd Circuit Chief Judge Michael Chagares, whose court in May adopted — over objections — a 5 p.m. e-filing deadline. A subcommittee tasked with evaluating whether to take the same approach nationally voted unanimously in August to recommend dropping further deliberation.
- U.S. District Judge John Chun in Seattle will hold the first hearing in the FTC’s landmark lawsuit accusing Amazon of violating competition laws. Amazon has denied that its policies run afoul of U.S. antitrust law, and legal experts said the agency’s case could face hurdles. Amazon is represented by attorneys from Williams & Connolly and Covington, firms that have long defended the e-commerce giant. Susan Musser and Edward Takashima are leading the FTC’s case.
- The Federalist Society will host a panel discussion with EEOC commissioners Jocelyn Samuels and Andrea Lucas about diversity, equity and inclusion efforts. DEI initiatives have come under greater legal threat in the wake of the U.S. Supreme Court’s order barring U.S. colleges and universities from considering race in the admissions process. Kate Comerford Todd of law firm Ellis George Cipollone will moderate the discussion.
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Court calendars are subject to last-minute docket changes.
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- The U.S. Supreme Court barred two Texas-based manufacturers from selling products that can be quickly converted at home into firearms called “ghost guns,” granting a request by the Biden administration to again block a Texas federal judge’s order that had sided with companies. The justices lifted U.S. Judge Reed O’Connor’s Sept. 14 injunction barring enforcement of a 2022 federal regulation. (Reuters)
- The U.S. Supreme Court turned away North Carolina’s defense of a state law aimed at preventing hidden-camera investigations from damaging farms and other businesses. A lower court said the law violates the U.S. Constitution’s right to free speech when enforced against “newsgathering activities.” (Reuters)
- The DOJ denied revealing confidential business information in its antitrust lawsuit accusing meat industry data provider Agri Stats of violating federal competition law. Agri Stats accused the government of incorporating in its publicly filed lawsuit sensitive business information that was otherwise protected from disclosure. Agri Stats, represented by Hogan Lovells, has called the DOJ’s claims “wrong on the law.” (Reuters)
- ExxonMobil, Shell, Chevron and other major fossil fuel companies told a federal judge that a lawsuit filed by Puerto Rican cities and towns to hold them accountable for climate change under an anti-organized crime law is “far-fetched.” The companies are seeking to dismiss a lawsuit filed last year by 16 municipalities seeking billions of dollars in climate-related damages. (Reuters)
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- Paul Hastings hired Scott Joachim in the firm’s Palo Alto office, where he will serve as global vice chair of the private equity practice. Joachim previously was at Goodwin. Paul Hastings also added capital markets partner David Ambler in the same office. Ambler arrives from Cooley. (Reuters)
- Cleary Gottlieb brought on Angela Dunning in the firm’s San Francisco and Palo Alto offices as a litigation partner focused on matters including copyrights, trade secrets and commercial disputes. Dunning was previously at Cooley. (Cleary Gottlieb)
- Finnegan added Jennifer Fried as a partner in D.C. and head of the firm’s advertising practice. Fried was previously at Kelley Drye. (Finnegan)
- Vinson & Elkins added corporate partner Chris Taufatofua in the firm’s London office from Milbank. (Vinson & Elkins)
- Womble Bond Dickinson added patent partner Stephanie Seidman in San Diego. Seidman was previously at Dentons. (Womble)
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Data breaches attract regulatory interest when they involve sensitive information, many consumers or a vulnerable demographic, write Stephen Piepgrass, Gene Fishel and Sadia Mirza of Troutman Pepper. State attorneys general, federal agencies and other investigators might come calling. Here’s a look at some of the enforcers.
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