The National Law Journal

The National Law Journal In-depth coverage of the U.S. Supreme Court, legal business, federal trial and appellate courts, law schools, regulatory agencies, lobbying and Congress.

An indispensable, must-read source of news and analysis for a national audience of legal professionals, and corporate and government decision makers. The National Law Journal, an ALM Media LLC publication, reports on the U.S. Supreme Court, legal business, federal agencies, trial and appellate courts, lobbying and Congress and law schools. Reporters work from offices in Washington, D.C., New York, Boston and California.

U.S. District Judge Susan Bolton of the District of Arizona in Phoenix, who oversaw the criminal contempt of court case ...
02/27/2020
Ninth Circuit Declines to Vacate Joe Arpaio’s Criminal Contempt Record, but Defense Declares Victory | National Law Journal

U.S. District Judge Susan Bolton of the District of Arizona in Phoenix, who oversaw the criminal contempt of court case against Arpaio, granted his lawyers’ motion to dismiss but declined to vacate the court record in the case, finding the presidential pardon did “not erase a judgment of conviction, or its underlying legal and factual findings.” https://trib.al/UPBPvZ2

Although a Ninth Circuit panel upheld a federal judge’s refusal to vacate the former Arizona sheriff’s guilty verdict for criminal contempt in the wake of a 2017 pardon from President Donald Trump, Arpaio’s lawyer said the ruling “gave us exactly what we asked for … that the judge’s find...

“The express purpose of the act was to eradicate the practice of paying women less simply because they are women,” Judge...
02/27/2020
9th Circuit: Employers Can't Rely on Prior Pay to Justify Gender Disparities | National Law Journal

“The express purpose of the act was to eradicate the practice of paying women less simply because they are women,” Judge Morgan Christen wrote for the majority. “Allowing employers to escape liability by relying on employees’ prior pay would defeat the purpose of the act and perpetuate the very discrimination the EPA aims to eliminate.” https://trib.al/bRFpV4y

The express purpose of the [Equal Pay Act] was to eradicate the practice of paying women less simply because they are women, Judge Morgan Christen of the U.S. Court of Appeals for the Ninth Circuit wrote for the majority.

Tuesday’s “settlement framework,” which also resolves thousands of claims brought by cities and counties in the multidis...
02/27/2020
Opioid Manufacturer Mallinckrodt Reaches $1.6B Global Settlement | National Law Journal

Tuesday’s “settlement framework,” which also resolves thousands of claims brought by cities and counties in the multidistrict litigation, is among the most significant global settlements by a corporation sued over the #opioid crisis. https://trib.al/T7hJdye

Mallinckrodt's settlement framework resolves thousands of claims brought by cities and counties in the multidistrict litigation and has the support of 47 attorneys general from states and U.S. territories.

U.S. Surgeon General Jerome Adams warned that vaping could lead to lifelong addiction, and news reports stated federal o...
02/26/2020
Troubles Mount for Juul as 34 States Join Investigation of E-Cigarette Company | National Law Journal

U.S. Surgeon General Jerome Adams warned that vaping could lead to lifelong addiction, and news reports stated federal officials singled out Juul, saying the company fueled an epidemic. https://trib.al/bLqoINw

In July 2019, Connecticut began a narrow investigation looking into whether Juul's marketing and sales practices were proper. Late Tuesday, 38 more states joined Connecticut in a broader investigation of the company that will also look at the alleged marketing of the product to teens.

"At the end of the day, I’m optimistic about this. I’ve lived long enough to see changes, the likes of which I could not...
02/26/2020
Eric Holder, Evercore Litigation Chief Urge 'Hope Over Cynicism' on Diversity in Law | National Law Journal

"At the end of the day, I’m optimistic about this. I’ve lived long enough to see changes, the likes of which I could not have anticipated as a young man. I served in the administration of a black president. If you told 15-year-old Eric that in his lifetime there would be a black president, I would have thought that was impossible. A young, skinny black kid from Queens is going to be attorney general of the United States? Yeah right. And yet, it happened. We’re not yet where we need to be, but I’m actually optimistic we can actually get to that place." - Eric Holder https://trib.al/MxfU8jg

The former attorney general and Brogiin Keeton discussed progress, obstacles and paths forward for the industry.

Charles Geyh, Indiana University Maurer School of Law: “The president’s call for Justice Sotomayor to recuse is frivolou...
02/26/2020
'Ridiculous and Unhelpful': Commentary on Trump's Bashing of SCOTUS | National Law Journal

Charles Geyh, Indiana University Maurer School of Law: “The president’s call for Justice Sotomayor to recuse is frivolous. The Supreme Court has ruled that statements that a judge makes in the course of a judicial proceeding give rise to the need for disqualification only “if they reveal such a high degree of favoritism or antagonism to make fair judgment impossible.” Blistering dissents that question the motives of the majority are business as usual on the Court—Justice Scalia made a career of it. The case for Justice Ginsburg to recuse is somewhat stronger, but ultimately limited in scope. Because Ginsburg’s comments were focused on then-Candidate Trump personally, I think a case could be made that Justice Ginsburg ought to disqualify herself from cases in which President Trump sues or is sued in his personal capacity. Because Ginsburg’s comments were not directed at the prospective policies of his administration, however, I do not think that her impartiality might reasonably questioned in every case in which an administration policy is under review.” https://trib.al/l57H14s

The presidential tweet to recuse a Supreme Court justice for an opinion she wrote is absurd and demonstrates a disturbing lack of understanding of the role of the judiciary, one legal scholar said.

"Following the transition to the public sector, first, embrace the concept that nothing is beneath you. Some of the best...
02/25/2020
No Free Lunch: How to Chart Your Course to Success as a Government Lawyer | National Law Journal

"Following the transition to the public sector, first, embrace the concept that nothing is beneath you. Some of the best advice I ever received from a former assistant U.S. attorney turned Big Law partner: treat every investigation, matter or task with the same dedication that you would the highest-profile case in the office.

"That means you should treat the search warrant affidavit with the same level of care and detail that you would a major government fraud indictment. Both are documents that infringe on someone’s liberty, are filed with the court, and reflect on you, your office and the Department of Justice."

https://trib.al/gIrHNst

You’re now trading your pocket square or designer bag for a lapel pin and government-issued laptop case. How do you successfully transition into a new role and a new structural model?

Experts at Tuesday’s hearing agreed that injunctions have impacted executive actions from both political parties, largel...
02/25/2020
Lawmakers, Stuck in Political Deadlock, Look to Supreme Court to Fix National Injunctions | National Law Journal

Experts at Tuesday’s hearing agreed that injunctions have impacted executive actions from both political parties, largely the Obama and Trump administrations. But critics said there should be action taken to curb the use of the tools, whereas advocates said injunctions should not be removed entirely. https://trib.al/8ZHOXWZ

Judiciary Committee Senators on Tuesday indicated during a hearing on national injunctions that they would rather let the U.S. Supreme Court get involved.

After filing its appeals with the Federal Circuit on Dec. 30, North Star dutifully moved to vacate and remand Jan. 29. T...
02/25/2020
Micron and PTO: The Arthrex Window Is Now Shut | National Law Journal

After filing its appeals with the Federal Circuit on Dec. 30, North Star dutifully moved to vacate and remand Jan. 29. The motion is “based on the violation of the Appointments Clause as already determined by Arthrex, and is appropriately raised in a motion filed prior to North Star’s opening brief,” North Star stated in a filing signed by Edward Flynn of Eckert Seamans Cherin & Mellott.

Not so fast, said opponent Micron and its lawyers at Orrick, Herrington & Sutcliffe.

https://trib.al/rqL4Ora

A patent owner that could have requested rehearing from the U.S. Patent and Trademark Office after the U.S. Court of Appeals for the Federal Circuit's appointment clause decision has forfeited its chance at a new PTO panel, the tech company argues.

President Donald Trump tapped Rosen, a former Kirkland & Ellis senior partner, to be the department’s chief operating of...
02/24/2020
DOJ's Jeffrey Rosen, Barr's No. 2, Will Make Supreme Court Debut | National Law Journal

President Donald Trump tapped Rosen, a former Kirkland & Ellis senior partner, to be the department’s chief operating officer in February 2019. Rosen will represent the United States as a friend of the court in Lomax v. Ortiz-Marquez, a case in which a Colorado prisoner has asked the justices whether a dismissal without prejudice for failure to state a claim counts as a strike under the Prison Litigation Reform Act.

https://trib.al/jMrzUK5

Deputy U.S. Attorney General Jeffrey Rosen's high court argument follows a long tradition of attorneys general or their deputies making at least one appearance during their tenures. Rosen joined the Trump administration from Kirkland & Ellis.

“We write on behalf of law students who believe that the federal judiciary has responded inadequately to widespread misc...
02/24/2020
Harvard, Yale and Stanford Law Students Chide Judiciary Over Its Handling of Sexual Misconduct | National Law Journal

“We write on behalf of law students who believe that the federal judiciary has responded inadequately to widespread misconduct and are concerned that the judiciary is not a safe working environment,” the letter reads.

It was signed by the Harvard Women’s Law Association; Stanford Law School for Gender Violence Prevention; Women of Stanford Law; Yale Law Women; and the Yale Law School Title IX Working Group. The letter was also endorsed by the People’s Parity Project, a student organization that started at Harvard Law but has since established chapters at six top law campuses.

https://trib.al/N2HceEW

Law student groups from Yale, Stanford and Harvard cite the slow progress by the federal judiciary in effectively addressing the problem.

Thomas used the Baldwin case to raise and advance his concerns about his prior Brand X decision, and the underlying doct...
02/24/2020
Justice Thomas, in Lone Dissent, Thrashes 'Chevron' and His Own 'Brand X' Decision | National Law Journal

Thomas used the Baldwin case to raise and advance his concerns about his prior Brand X decision, and the underlying doctrine called “Chevron deference,” a bedrock part of administrative law that says courts generally adopt agencies’s views, if reasonable, of their rules. That deference has drawn criticism from conservatives members of the court, but no justice has moved to overturn the 1984 ruling.

“Even if the court is not willing to question Chevron itself, at the very least, we should consider taking a step away from the abyss by revisiting Brand X,” Thomas wrote in Monday’s dissent. Quoting a statement from the late Justice Robert Jackson in a 1950 ruling, Thomas said: “It is never too late to ‘surrende[r] former views to a better considered position.”

https://trib.al/VDEtRuI

Thomas regularly writes solo dissents, urging his colleagues to revisit, or even strike down, earlier rulings. But it's rare for any justice to cast doubt on a prior ruling the justice had earlier written.

The 10.4% rise marked the 24th straight year in which the firm’s top line increased. Net income also increased by 13.6%,...
02/24/2020
Gibson Dunn Revenues Hit $2B in Another Double-Digit Growth Year | National Law Journal

The 10.4% rise marked the 24th straight year in which the firm’s top line increased. Net income also increased by 13.6%, the 23rd consecutive year of profit growth.

Profits per equity partner climbed upward 12.4% to $3.76 million, while revenue per lawyer hit $1.49 million, up 6.8%.

https://trib.al/w9zCPIv

It was a fabulous year, said chairman Kenneth Doran, as the firm closes in on a quarter-century of nonstop growth.

In 1982, Wallace included a memorable footnote in a brief signaling that he would not support the Reagan administration’...
02/24/2020
Larry Wallace, Former Deputy Solicitor General and Courageous Civil Servant, Dies at 88 | National Law Journal

In 1982, Wallace included a memorable footnote in a brief signaling that he would not support the Reagan administration’s position in Bob Jones University v. United States. At issue was the Internal Revenue Service policy that denied tax-exempt status to institutions that discriminated by race. The Reagan White House wanted to oppose that policy in the government’s brief.

When Solicitor General Rex Lee recused, the task of signing the brief fell to Wallace. Wallace did so, but insisted on adding the footnote, which angered Reagan administration officials. The Supreme Court ultimately upheld the policy.

The late Erwin Griswold, who served as the U.S. solicitor general from 1967 to 1973, told The Washington Post in 1982 that Wallace’s action was “an attempt to preserve the credibility of the office.”

Wallace remained in the office, but he was relieved of handling civil rights cases for the government, and a new position of a politically appointed deputy solicitor general was created.

https://trib.al/NIw6jUd

Harvard Law School professor Richard Lazarus called Larry Wallace’s legendary footnote in a U.S. Supreme Court case “an act of extraordinary personal courage and professional integrity.”

Christopher Garvey alleged Morgan Stanley leaders forced him out after he raised concerns about alleged foreign bribery ...
02/24/2020
Former Morgan Stanley Lawyer's Retaliation Complaint Is Dismissed | National Law Journal

Christopher Garvey alleged Morgan Stanley leaders forced him out after he raised concerns about alleged foreign bribery and securities regulations. The company has denied the allegations. https://trib.al/RB0EdfO

The ruling against Christopher Garvey, formerly among Morgan Stanley's top lawyers in Hong Kong, was the latest decision exploring the contours of anti-retaliation provisions of the Sarbanes-Oxley Act of 2002.

The ruling against Christopher Garvey, formerly among Morgan Stanley’s top lawyers in Hong Kong, was the latest decision...
02/21/2020
Former Morgan Stanley Lawyer's Retaliation Complaint Is Dismissed | National Law Journal

The ruling against Christopher Garvey, formerly among Morgan Stanley’s top lawyers in Hong Kong, was the latest decision exploring the contours of anti-retaliation provisions of the Sarbanes-Oxley Act of 2002. Garvey alleged Morgan Stanley leaders forced him out after he raised concerns about alleged foreign bribery and securities regulations. The company has denied the allegations.
https://trib.al/slsIC97

The ruling against Christopher Garvey, formerly among Morgan Stanley's top lawyers in Hong Kong, was the latest decision exploring the contours of anti-retaliation provisions of the Sarbanes-Oxley Act of 2002.

Matz said he had other options after leaving the congressional committee, but returning to Kaplan Hecker was an easy dec...
02/21/2020
House Impeachment Lawyer Joshua Matz Will Lead Kaplan Hecker’s DC Expansion | National Law Journal

Matz said he had other options after leaving the congressional committee, but returning to Kaplan Hecker was an easy decision. He said the firm’s approach to making civil rights and public interest litigation a central part of its work, rather than solely having pro bono work on the side, was a major draw. https://trib.al/NCSxcpC

While Kaplan Hecker has a presence in D.C., the new office marks an official expansion to the region.

Consovoy McCarthy, which has been a leading advocate for President Trump in court and has become more broadly a go-to fi...
02/21/2020
RBG's Remarks on Equal Rights Amendment Are Used Against Advocates in Court | National Law Journal

Consovoy McCarthy, which has been a leading advocate for President Trump in court and has become more broadly a go-to firm for conservative legal causes, pointed to Justice Ginsburg's comments that the ratification effort needed to “start over again.” https://trib.al/owZ6hfj

As Justice Ginsburg put it, the ERA cannot be ratified unless it’s 'put back in the political hopper' and its proponents 'start over again, collecting the necessary number of states,' lawyers for Alabama, Louisiana, Nebraska, South Dakota and Tennessee said in a court filing. The states' outside c...

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#LegalSpeak Podcast: In this clip, Angela Onwuachi-Willig Angela Onwuachi-Willig shares her mentor story about Kevin Johnson, dean of UC Davis Law. Listen to full episode here http://ow.ly/xP0C30n7Gqf

#LegalSpeak Podcast: In this clip, partner Elizabeth Cabraser shares her mentor story about Robert Lieff of Lieff Cabraser. Listen to full episode here http://ow.ly/cIbN30n73UR

#LegalSpeak Podcast: We explore the meaning & nature of mentoring in the legal profession. In this clip, Bob Giuffra talks about his mentor, high powered Sullivan & Cromwell litigator Vince DiBlasi. Listen to full episode here http://ow.ly/mshe30n6OP7

Marcia Coyle's Cases to Watch at Next Supreme Court Conference
Marcia Coyle's Cases to Watch at Next Supreme Court Conference

Catch up with Marcia Coyle, chief Washington correspondent for The National Law Journal, on what to watch at Friday's U.S. Supreme Court conference.

Marcia Coyle: What the Justices' Flurry of Early Rulings Revealed
Marcia Coyle: What the Justices' Flurry of Early Rulings Revealed

Marcia Coyle, chief Washington correspondent at The National Law Journal, was in court Monday as the justices delivered their first flurry of opinions in the new term. She shares her observations:

The National Law Journal hosted its 2017 Legal Awards at the Mayflower Hotel in Washington on Nov. 9. The NLJ lauded law firms and lawyers from across the country, including three 2017 Lifetime Achievers: Benjamin Wilson, chairman of Beveridge & Diamond; Elizabeth Cabraser, a founding partner of Lieff Cabraser and David Abromowitz, a partner with Goulston & Storrs. Other honorees included overall Washington Legal Department of the Year co-winners: Hilton Worldwide Holdings Inc. and Marriott Corp. and overall DC Litigation Department of the Year co-winners: Kirkland & Ellis and Wilmer Hale. The NLJ also honored 12 law firms named to its Pro Bono Hot List and 40 DC Rising Stars. We salute all of our honorees. See the full slideshow on the NLJ site: https://www.law.com/nationallawjournal/sites/nationallawjournal/2017/11/20/the-nlj-celebrates-its-2017-legal-awards-honorees-see-the-slideshow/

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