Friday, May 7, 2021

Public Policy Law360 May 2021


The Biden administration's push for power lines to be built alongside highways may help address the siting issues and local opposition that frequently bedevil such projects, but experts say guidance recently issued by federal transportation officials is far from a silver bullet.

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Friday, May 7, 2021

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Federal Highway Guidance No Power Line Project Panacea

The Biden administration's push for power lines to be built alongside highways may help address the siting issues and local opposition that frequently bedevil such projects, but experts say guidance recently issued by federal transportation officials is far from a silver bullet.

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CFPB May Fill Enforcement Gap After FTC's High Court Loss

As the Federal Trade Commission looks for a way forward after its bruising encounter with the U.S. Supreme Court last month, fintech firms and other non-banks could see the Consumer Financial Protection Bureau step in to pick up enforcement slack.

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FTC, DOJ Show No Sign Of Resuming Early Merger OKs

The U.S. Department of Justice and the Federal Trade Commission said their suspension of early ends to merger reviews wouldn't last long, but three months later, the agencies have given no sign they'll soon restore the early terminations granted to huge numbers of transactions.

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3 Cos. Will Pay $4.4M Over Cribbed Net Neutrality Comments

Three marketing companies will pay a combined total of $4.4 million to settle claims that they flooded the Federal Communications Commission's net neutrality docket with comments that used stolen identities, New York's attorney general announced Thursday.

4 documents attached | Read full article »

GOP Sens. Want Cuomo Probed Over Nursing Home Deaths

A group of Republican U.S. senators on Wednesday called for a congressional probe of embattled New York Gov. Andrew Cuomo over his alleged undercounting of nursing home deaths due to the COVID-19 pandemic.

Letter attached | Read full article »

Trump Doc Subpoena Should Be Upheld, House Panel Says

A U.S. House committee seeking former President Donald Trump's personal and business financial records should be able to obtain the information now that he is no longer in office, the panel told a D.C. federal court.

Memorandum attached | Read full article »

Florida's New Vote-By-Mail Restrictions Hit With Multiple Suits

Minutes after Florida Gov. Ron DeSantis signed a bill Thursday that curbs mail-in voting and increases voter identification requirements, the state drew legal challenges from the NAACP, the League of Women Voters and others who claim the new law disproportionately impacts Black, Latino and disabled voters' ability to cast a ballot.

Complaint attached | Read full article »


5 Takeaways From Gensler's Debut In Congress As SEC Chair

Gary Gensler made his first official appearance before Congress as the top U.S. securities cop at a Thursday hearing, ostensibly geared toward so-called meme stock trading, that lawmakers used as a temperature check for the regulatory hawk's policy agenda.

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9th Circ. Says National Forest Cattle Grazing Permits Lawful

The Ninth Circuit reversed a lower court's decision Thursday and held that the U.S. Forest Service rightfully imposed restrictions on cattle grazing operations in Montana's largest national forest to protect streams and vegetation.

Opinion attached | Read full article »

Biden Admin. Proposes Revoking Trump Migratory Bird Rule

The U.S. Department of the Interior on Thursday proposed a rule to undo the Trump administration's effort to curtail the federal government's power to prosecute companies that kill federally protected migratory birds.

Proposed Rule attached | Read full article »

Orcas Threatened By Alaska Commercial Fishing, Group Says

The federal government's approval of commercial fishing off the coast of Alaska has put an endangered killer whale community at risk, and efforts to mitigate that fact may be more of a hindrance than a help, an environmental group told a Washington federal court Wednesday.

Memorandum attached | Read full article »

Texas Backs Florida's Bid To Overturn CDC Cruise Ban

In a move to support the cruise industry during the COVID-19 pandemic, Texas has filed a motion to intervene in Florida's suit seeking to block the federal government from enforcing its now yearlong ban on cruises, following Alaska's lead in looking to join the case.

2 documents attached | Read full article »


Embattled NJ Jail Agrees To Review Of COVID-19 Conditions

A New Jersey federal judge signed off Thursday on appointing a special master to review conditions at the Cumberland County Jail under an agreement between county officials and pretrial detainees in the inmates' proposed class action over claims the facility has failed to adequately protect them against the spread of the coronavirus.

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USPTO Eyes $1.17B In Unreleased Funds For Fee Relief

The U.S. Patent and Trademark Office wants to get its hands on $1.17 billion collected before the America Invents Act, in the hopes of expanding services and limiting fee increases, the agency's chief financial officer said Thursday.

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Ohio Lawmakers Lob Sports Betting Legalization In New Bill

Online and mobile sports betting could be coming to the Buckeye State as part of a comprehensive gaming bill introduced by a group of Republican lawmakers Thursday, which calls for as many as 40 licenses for online, mobile and brick-and-mortar sportsbooks.

Bill attached | Read full article »


Judge Eyes Standing In Clash Over FAA's Flight Paths Project

A petition to undo federal aviation regulators' decision to redraw flight paths in and out of Denver International Airport and nearby airports faced skepticism from a D.C. Circuit judge Thursday, who said the challengers have not shown that they have Article III standing by demonstrating how the project injured them.

2 documents attached | Read full article »


Landlords, Trade Group Sue To Stop NY Eviction Protections

A group of small New York landlords and a major trade association are seeking to stop statewide eviction protections recently extended through August, claiming Thursday that legislation signed by Gov. Andrew Cuomo this week is unconstitutional.

Complaint attached | Read full article »


CalSavers Defeats ERISA Preemption Challenge In 9th Circ.

A Ninth Circuit panel handed a victory to California's state-run retirement program Thursday in a suit that had challenged its right to exist, ruling that the state law that created CalSavers isn't canceled out by the federal Employee Retirement Income Security Act.

Opinion attached | Read full article »

NLRB Health Unit Closure Didn't Break CBA, Labor Panel Says

The federal agency that administers labor relations for government workers said the National Labor Relations Board did not violate its collective bargaining agreement with the NLRB Union by closing its in-house health facilities, but ordered the NLRB to reopen the units.

Decision attached | Read full article »

EEOC Commissioner Urges Industry-Specific COVID Guidance

EEOC Commissioner Keith Sonderling said Thursday that the agency should consider issuing guidance that addresses COVID-19 issues that are unique to specific industries, saying it would help employers make decisions without wondering if their actions are lawful.  

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Microsoft Says It Will Let EU Customers Keep Data Inside Bloc

Microsoft committed Thursday to allowing businesses and government entities that use its cloud services in the European Union to store all of their data locally, amid lingering uncertainties about how to legally transfer data outside the bloc. 

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NY AG Aims To Join Suit Over Calls Targeting Black Voters

New York Attorney General Letitia James on Thursday asked to join a federal lawsuit against conservative conspiracy theorists Jacob Wohl and Jack Burkman for allegedly sending "threatening" robocalls aimed at suppressing Black voters ahead of last year's presidential election.

Letter attached | Read full article »


Online Taxes Hurt Small Digital Cos., Industry Rep Says

Taxes on online revenue will hurt small and medium-size digital businesses, even if they're not directly affected, a representative of small technology companies said Thursday at hearings held by the U.S. Trade Representative's office.

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11th Circ. Says Use Of Biz Account Bars Ch. 7 Debt Discharge

A man who used his company's business account to "get by financially" after being hit with a $20 million judgment and more than $300,000 in back taxes can't get those debts discharged in bankruptcy, the Eleventh Circuit has ruled.

Opinion attached | Read full article »


Baltimore Presses Biden For Essential Worker Citizenship

The Baltimore City Council unanimously passed a resolution asking President Joe Biden to create a pathway to citizenship for immigrant essential workers as part of a federal economic recovery program.

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Ex-Fla. Rep. Gets New Trial After Removal Of Faith-Led Juror

The Eleventh Circuit ordered a new trial Thursday for former U.S. Rep. Corrine Brown, ruling that the trial court had improperly removed a juror who believed the Holy Spirit had told him the ex-Florida congresswoman was innocent of corruption charges.

Opinion attached | Read full article »

Ex-Mayor's Fraud, Bribery Case Nears End As Defense Rests

A Massachusetts federal jury could begin deliberations as soon as Monday in the fraud and corruption trial of the former mayor of Fall River, after the ex-politician presented a brief defense against claims he drained investor cash from his startup and extracted bribes from cannabis entrepreneurs looking to open in the city.

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Tribes Drop Keystone XL Fight In Light Of Biden Veto

Two tribes, the developer of the Keystone XL pipeline and the Biden administration joined together to inform a Montana federal court they all agree an executive order canceling the presidential permit for the project brings about the end of litigation over the approval.

Notice attached | Read full article »


FCC Can't Trump California Net Neutrality Law, 9th Circ. Told

California's top legal officer has urged the Ninth Circuit to swat down an industry challenge to the state's net neutrality rules, saying the Federal Communications Commission's repeal of a similar regime does not prevent states from pursuing their own open-internet laws.

Brief attached | Read full article »

House Hearing Deepens Divide Over Broadband Subsidies

House Democrats and Republicans further deepened their split over the best way to expand broadband access on Thursday, as liberal members called for local government partnerships and consumer price limits while conservatives pushed to preserve the current private-sector subsidy model.

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Ex-Mass. Pot Regulator Joins Vicente Sederberg

One of Massachusetts' first cannabis regulators has taken a position at cannabis-focused law firm Vicente Sederberg LLP as its first director of regulatory policy, the firm recently announced.

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Rethinking Investment Treaties As Latin America Goes Green

As Latin America pivots toward renewable energy, governments should reshape bilateral investment treaties to allow incentives for new technologies and improve dispute settlement mechanisms, while also providing both new and established energy companies with certainty and fair treatment, say attorneys at GST.

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The Biden Administration Is Sharpening The TSCA's Sword

The Trump administration implemented the 2016 amendments to the Toxic Substances Control Act in a way that critics felt benefited chemical companies, but the Biden administration can be expected to use the amendments to broaden risk reviews and impose new requirements on the regulated community, say attorneys at Kilpatrick.

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CFPB's First 100 Days Lay Foundation To Maximize Authority

Former Consumer Financial Protection Bureau general counsel Quyen Truong, now at Stroock, analyzes how developments in the first 100 days under new CFPB leadership reclaim the agency's activist mission and authority, redirect resources toward forceful action, and open the door to change the regulatory framework.

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Bid Protest Spotlight: Scope, Evaluation Criterion, Privity

In this month's bid protest roundup, Sandeep Nandivada and Markus Speidel at MoFo look at April U.S. Government Accountability Office and U.S. Court of Federal Claims decisions concerning proposed labor categories outside the scope of vendor schedule contracts, use of unstated evaluation criterion, and whether co-prime contractor privity supports standing to protest.

3 documents attached | Read full article »

4 Trends In Discoverability Of Litigation Funding Documents

Recent rulings shed light on how courts and international arbitration tribunals decide if litigation funding materials are discoverable and reaffirm best practices that attorneys should follow when communicating with funders, say Justin Maleson at Longford Capital and Michele Slachetka and Christian Plummer at Jenner & Block.

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Alex Oh Lawyers Up In Exxon Case After Brief SEC Stint

Alex Oh, the corporate defense attorney who resigned as head of the U.S. Securities and Exchange Commission's enforcement division less than one week after achieving the coveted post, has hired the president of the D.C. Bar to back her in the ongoing Exxon Mobil Corp. human rights case that is seen as the likely impetus for her abrupt SEC departure.

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Reed Smith Eyes Fully Reopening Offices In September

Reed Smith LLP said Thursday that it would gradually begin encouraging more of its lawyers to go into the office in the coming months, as it eyes fully reopening all of its 17 U.S. locations by September.

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Rimon Grows Further In Texas With Austin Launch

Rimon PC is the latest law firm to plant a flag in Austin, Texas, announcing Thursday that it has hired a former Reed Smith LLP partner to spearhead its growth in the fast-growing Texas technology hub.

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Holland & Knight Adds Former NBCUniversal Privacy Chief

BigLaw firm Holland & Knight announced on Tuesday the hiring of NBCUniversal's former chief privacy officer to boost its data strategy, security and privacy practice.

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Adtalem GC Who Led Diverse Staff On $1.5B Deal Resigns

Adtalem Global Education Inc.'s general counsel, who had received widespread acclaim among his peers last year for staffing a team entirely with African American and female corporate lawyers for the educator's $1.5 billion acquisition of Walden University, has left the company, according to a recent filing with the U.S. Securities and Exchange Commission.

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GoDaddy Taps McKesson Corp. Atty For CLO Slot

GoDaddy Inc. has announced that McKesson Corp. attorney Michele Lau will join the company to serve as its new chief legal officer starting in July.

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Ex-NFL Team GC Wants His Docs Sealed In Wilkinson Suit

The Washington Football Team's former general counsel has urged a Virginia federal court to seal arguments he has made in litigation over a sexual harassment probe so that details over confidential deals don't come into public view.

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Carter's Wants Out Of Legal Affairs Manager's Bias Case

The legal and corporate affairs manager for the parent company of Carter's and OshKosh B'gosh children's clothing waited too long to claim she was not promoted because of her age and gender, the retailer has told a Georgia federal court.

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Lin Wood Says Judge 'Abused' Power By Taking Him Off Case

Controversial attorney L. Lin Wood told the Delaware Supreme Court on Wednesday that a state trial court "abused its discretion" by revoking his temporary admission in a First State defamation case involving onetime Trump administration adviser Carter Page.

Read full article »

17 New Immigration Judges Largely Held Prior Gov't Roles

The first group of 17 immigration judges to begin working under the Biden administration includes eight former prosecutors, seven attorneys who counseled U.S. Immigration and Customs Enforcement and two who were most recently private practitioners, according to a Thursday announcement.

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Coronavirus Litigation: The Week In Review

A D.C. federal judge has vacated the U.S. Centers for Disease Control and Prevention's nationwide eviction ban, Pfizer and BioNTech must face claims they poached research technology while testing their COVID-19 vaccine, and Kentucky's attorney general has a green light from the Sixth Circuit to continue price-gouging probes into Amazon sellers.

Read full article »


The Term: Goodbye Arguments, Opinion Season Is Upon Us

The Supreme Court heard its final oral argument of the term this week in a criminal case involving sentencing relief for low-level crack offenders that saw some tough questions for the Biden administration. Law360's The Term dives into the case, then looks ahead to some of the biggest decisions that are expected to come by the end of June.

Read full article »

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