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Good morning. A trial wrapping up in Philadelphia could shed more light on Bayer’s Roundup losses. Our colleague Brendan Pierson has some takeaways on the court action. Plus, Purdue Pharma’s bankruptcy settlement goes before the U.S. Supreme Court today, ex-Wells Fargo chief executive Tim Sloan is suing over pay; and Donald Trump has lost his bid to dismiss the federal case over election interference. Scroll for our week-ahead calendar, and more. Happy Monday!
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With Bayer facing investor pressure to resolve thousands of lawsuits over its Roundup weedkiller after being hit with $2 billion in verdicts in recent weeks, all eyes are on a trial wrapping up in Philadelphia, our colleague Brendan Pierson reports.
Plaintiffs have won the last four trials over their claims that the product causes cancer, each time clinching a larger verdict. Those losses ended a nine-trial winning streak for Bayer, shattering investor and company hopes that the worst of the Roundup litigation was over.
In the ongoing case in Pennsylvania, resident Kelly Martel claims she developed non-Hodgkin lymphoma from using Roundup. Her case will help test whether plaintiffs’ recent victories were an aberration or the payoff from favorable court rulings and a shift in plaintiffs’ strategy.
Interviews with lawyers on both sides, and a review of trial transcripts, suggest several factors could explain the difference in outcomes. Those include judges’ rulings allowing jurors to hear testimony about regulatory issues related to Roundup, which Bayer has called misleading, and a new emphasis by plaintiffs lawyers on chemicals in the product other than its active ingredient, glyphosate.
Bayer maintains Roundup is safe and said in a statement that it would “continue to try Roundup cases as the science is strongly on our side.”
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- Two practice leaders have left virtual law firm FisherBroyles for a new firm that may include nearly half of FisherBroyles’ 300 lawyers. Joel Ferdinand, formerly managing partner of FisherBroyles’ litigation department, and Michael Pierson, managing partner of the corporate department, said they would soon announce plans for a “significant new venture.”
- Boies Schiller opened an office in Rome, two years after it broke into the Italian legal market in Milan. Partners Natalia Bagnato and Simone Grassi joined alongside three associates from RP Legal & Tax to spearhead the launch.
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The Illinois Supreme Court ruled on Thursday that lawyers are entitled after the conclusion of a trial to discuss confidential information that their clients disclosed publicly in trial testimony. To hold otherwise, the state justices said, “would fly in the face of … basic principles which are at the core of our judicial system and our democracy.” You are doubtless wondering about the circumstances that prompted this stirring affirmance of trial lawyers’ speech rights. Alison Frankel has the story. Be warned: It’s not a happy tale.
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“The United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass .“
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—U.S. District Judge Tanya Chutkan, denying Donald Trump’s bid to dismiss the criminal case accusing him of unlawfully trying to overturn his 2020 loss to Joe Biden. Chutkan found no legal basis for concluding that presidents cannot face criminal charges once they are no longer in office, Andrew Goudsward writes. Chutkan’s ruling is the first by a U.S. court affirming that presidents can be charged with crimes like any other citizen. Trump can immediately appeal the ruling.
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- Today, the U.S. Supreme Court will hear oral arguments in a challenge from the Biden administration to the legality of OxyContin maker Purdue Pharma’s bankruptcy settlement that would shield its wealthy Sackler family owners from lawsuits over their role in the country’s opioid epidemic. The justices in August paused bankruptcy proceedings concerning Purdue and its affiliates. Purdue’s owners under the settlement would receive immunity in exchange for paying up to $6 billion to settle thousands of lawsuits. Members of the Sackler family have denied wrongdoing but expressed regret that OxyContin “unexpectedly became part of an opioid crisis.” Latham’s Gregory Garre will argue for Purdue, facing off against DOJ’s Curtis Gannon.
- On Tuesday, the FDA will urge the 5th Circuit to reverse a Texas judge’s decision blocking an agency rule requiring graphic health warnings on cigarette packages and in cigarette advertisements. Companies including R.J. Reynolds, ITG Brands and Liggett Group challenged the rule, which would require the use of 11 graphic images, such as images of diseased feet with amputated toes that show possible consequences of cigarette smoking.
- On Wednesday, a 9th Circuit panel will take up the FTC’s bid for an order against Microsoft’s now-closed $69 billion acquisition of Activision Blizzard. The agency, which has said the deal violates U.S. antitrust law, lost its effort for a preliminary injunction. U.S. District Judge Jacqueline Scott Corley’s order allowed Microsoft to move ahead with the deal, and the FTC has said the ruling incorrectly held the agency to a legal standard that was too high.
- On Thursday, former correctional counselor William Tidwell will be sentenced after admitting he secretly accepted tens of thousands of dollars from a wealthy inmate identified by a source as Galleon Group hedge fund founder Raj Rajaratnam in exchange for preferential treatment. The case is before U.S. District Judge William Young in Boston.
- On Friday, Epic Games and Apple are due to respond in the U.S. Supreme Court to competing petitions the two companies filed over their blockbuster antitrust dispute. Epic’s attorneys want the justices to revive the video game maker’s claims involving Apple’s App Store. Lawyers for Apple are fighting a lower court injunction in that case that would require changes to the rules for the App Store.
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Court calendars are subject to last-minute docket changes.
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- A D.C. Circuit panel is weighing whether to allow the DOJ to reopen an investigation of National Association of Realtors. The Biden administration contends a prior settlement with the realtors group did not bar the government from reopening its probe of industry practices. Quinn Emanuel’s Christopher Michel argued for the real estate organization against DOJ’s Frederick Liu.
- Texas must remove a 1,000-foot-long floating barrier it placed in the Rio Grande river to deter migrants from illegally crossing the border with Mexico, a 5th Circuit panel ruled. The court in a 2-1 decision declined a request by the Republican-governed state to reverse a federal judge’s decision ordering it to move the string of buoys placed in the Rio Grande in July.
- A New York state appeals court turned away a challenge by Uber, DoorDash and Grubhub to New York City’s novel minimum wage law for app-based delivery workers, allowing it to take effect. The court denied appeals by the companies after a state judge rejected their claims that the law unfairly targets their food delivery services.
- Major pharmaceutical firms including Teva, Sandoz and Aurobindo are trying to bar a group of states that sued them from leaving centralized antitrust litigation in Philadelphia, warning of “chaos” if the companies are forced to fight the same price-fixing claims in more than one venue. The manufacturers asked the Judicial Panel on Multidistrict Litigation to keep the lawsuits consolidated in federal court in the Eastern District of Pennsylvania.
- Food giants Kraft, General Mills, Kellogg and Nestle on Friday won a $17.7 million verdict after persuading a Chicago federal jury that they were overcharged for egg products in a conspiracy by the biggest producers and industry trade groups to artificially increase prices. The damages award could be tripled under U.S. antitrust law to more than $53 million. Egg producer Cal-Maine and the other defendants denied any wrongdoing.
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- Greenberg Traurig added three lawyers to its healthcare and FDA practice in Denver, including partners Erin Eiselein and Anna-Liisa Mullis, and counsel Ishra Solieman. The group previously was at Brownstein Hyatt. (Greenberg Traurig)
- Frost Brown Todd adds partner Mary London Fuller to its product, tort and insurance practice group in Houston. She arrives from Sheehy, Ware, Pappas & Grubbs. (Frost Brown Todd)
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Bankers and registered agents in UK offshore jurisdictions need to execute payment requests in a way that protects them from becoming defendants to fraud claims if funds are misappropriated. A recent UK Supreme Court decision sheds light on the scope of the duty to provide such services with reasonable skill and diligence, write Peter Ferrer and Gerrard Tin of Harneys
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