Friday, June 4, 2021

LAW 360. Public Policy June 4, 2021

 

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Friday, June 4, 2021 Follow Law360

TOP NEWS

Analysis

Biden's Anti-Corruption Vow Could Supercharge Enforcement

President Joe Biden's anti-corruption directive to more than a dozen federal agencies Thursday signals a sea change in the government's approach to policing graft, attorneys say, placing renewed emphasis on cooperation and expanding enforcement beyond typical corporate bribery schemes.

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Biden Unveils Plan To Crack Down On Corruption, Tax Havens

President Joe Biden issued a memorandum Thursday directing a range of federal government agencies to develop a new strategy for enforcing U.S. anti-corruption laws internationally by cracking down on foreign tax havens and illicit financing, which he said "contribute to income inequality, fund terrorism and generate pernicious foreign influence."

Memorandum attached | Read full article »

Dem Advisory Panel Backs 9 For Fed. Judge, US Atty In Fla.

A Southern District of Florida advisory panel organized by the state's Democratic U.S. representatives has recommended nine candidates for two federal district judgeships and a U.S. attorney post, including sitting jurists and partners at Akerman, Pillsbury and Holland & Knight.

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Lawmakers Seek Probe Of USPTO Director's Sway Over PTAB

Members of a House Judiciary subcommittee have asked the Government Accountability Office to investigate whether the U.S. Patent and Trademark Office director has improperly influenced or dictated the outcome of Patent Trial and Appeal Board decisions.

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Supreme Court Asked To Rule On CDC Eviction Ban

The federal government's eviction moratorium reached the U.S. Supreme Court on Thursday when a coalition of landlords and Realtors asked the justices to halt the policy during an appeal.

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DOJ Probing Postmaster DeJoy Over Campaign Fundraising

The U.S. Department of Justice is investigating U.S. Postmaster General Louis DeJoy for alleged campaign finance violations tied to donations made by his former employees, a spokesperson for DeJoy confirmed to Law360 on Thursday.

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Senate Approves Bill To Nix DC Circ. Ruling On Crimes Abroad

The U.S. Senate has approved a bipartisan bill clarifying that people can be prosecuted for attacking federal officers and employees serving abroad, resolving a circuit split by overturning a recent D.C. Circuit win for Mexican cartel gunmen.

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Sen. Cruz Wins Challenge Of Campaign Finance Restriction

Three D.C. federal judges sided with Republican Sen. Ted Cruz of Texas and his campaign on Thursday in their suit against the Federal Election Commission raising a constitutional challenge to a campaign finance restriction that limits the amount of post-election contributions that may be used to repay a candidate's pre-election loans.

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Dem Gets More Time To Serve GOP Legislator With Riot Suit

A House Democrat who hired a private investigator to find Rep. Mo Brooks so he could serve the Alabama Republican with a complaint alleging that he helped incite the insurrection at the U.S. Capitol on Jan. 6 will have another 60 days to track him down.

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BANKING & SECURITIES

Biden Picks Davis Polk Partner To Be Treasury Dept. GC

President Joe Biden has picked a Davis Polk & Wardwell LLP white collar defense partner who was a U.S. attorney during the Obama administration to serve as the next general counsel of the U.S. Treasury Department.

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2nd Circ. Blocks NY's Challenge To OCC Fintech Charter

The Second Circuit ruled Thursday that New York's legal challenge to the Office of the Comptroller of the Currency's fintech charter program should be thrown out for now, citing the fact that no fintech firm has yet applied for or received a federal banking license through the program.

Opinion attached | Read full article »

ENERGY & ENVIRONMENTAL

Analysis

Biofuels Jostle To Get Renewable Credit For Powering EVs

A looming fight over changes to the perennially contentious Renewable Fuel Standard will have ramifications for the Biden administration's push to bring electric vehicles into the mainstream and electrify the nation's transportation, with high stakes for diverse stakeholders from Tesla to environmental justice communities.

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9th Circ. Says Trump Didn't Back Up Nix Of Walrus Protections

The Ninth Circuit ruled Thursday that a "terse 3-page final decision" by the U.S. Fish and Wildlife Service didn't sufficiently back up its choice to strip the Pacific walrus of Endangered Species Act protections despite the threat of climate change and sea ice loss.

Opinion attached | Read full article »

Exxon Climate Case Sent Back To Connecticut State Court

A Connecticut federal judge has sent back to state court a suit filed by the state alleging ExxonMobil Corp. hid the real costs and effects of fossil fuels, saying the complaint does not implicate federal law that would require a federal court to hear the case.

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Biden's DOI Can't Get Suit Over DOI Coal Leasing Paused

A Montana federal judge on Thursday refused to pause litigation challenging a Trump-era U.S. Department of Interior decision restarting the federal coal-leasing program, ruling that ongoing coal leasing creates a "fair possibility" that a stay would damage those seeking to revive a ban on the practice.

Order attached | Read full article »

EPA Didn't Violate Species Act In COVID-19 Policy, Judge Says

A New York federal judge on Wednesday tossed green groups' lawsuit alleging the U.S. Environmental Protection Agency violated the Endangered Species Act by issuing a policy temporarily suspending some compliance obligations during the coronavirus pandemic.

Opinion attached | Read full article »

Asphalt Maker Strikes Settlement Over Alleged Calif. Pollution

A California roofing and asphalt company settled an environmental group's allegation that its facility has continually released polluted stormwater into a creek running into the Sacramento River by paying $53,000 and promising to comply with its existing Clean Water Act permits.

Order attached | Read full article »

NRC Tells DC Circ. To Nix Tribe's Uranium Mine Permit Appeal

The U.S. Nuclear Regulatory Commission asked the D.C. Circuit on Thursday not to review the Oglala Sioux Tribe's petition to revoke a license for a South Dakota uranium mine, arguing that the tribe largely ignores the commission's reasons for allowing the license.

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HEALTH & LIFE SCIENCES

Health, Green Groups Push FDA To Ban PFAS

Environmental, health and consumer groups on Thursday petitioned the U.S. Food and Drug Administration to ban all so-called forever chemicals in products it approves, saying the agency has ignored past evidence of the substances' threats to human health.

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Fla. Says CDC Can't Mandate Cruise Vaccine Passports

Florida Gov. Ron DeSantis on Wednesday slammed the federal government's request to file additional briefs in their legal fight playing out in the Sunshine State's federal court over pandemic-related cruise industry restrictions and said in a statement that requiring cruise-goers to be vaccinated discriminates against families with children.

Response attached | Read full article »

NJ Legislature Pushes Through Bill To End Most Virus Orders

The New Jersey Legislature signed off Thursday on a fast-tracked bill to lift most executive orders signed by Gov. Phil Murphy in response to the coronavirus pandemic, while leaving certain restrictions alone through the end of the year, with Democrats hailing the measure as pragmatic and Republicans blasting it for continuing the governor's "one-man rule."

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IP & TECHNOLOGY

Changes Coming To DOJ Antitrust IP Approach

The U.S. Department of Justice's acting antitrust chief on Thursday teased changes ahead in a departure from his Trump administration predecessor's approach to intellectual property issues, which was defined by a belief in the absolute rights of patent holders and a presumption that licensing commitments don't trigger competition law.

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SPORTS & BETTING

NJ Senate Approves College Sports Betting Ballot Measure

The New Jersey Senate on Thursday overwhelmingly agreed to ask voters whether to permit sports betting on all college games, as lawmakers aim to expand the reach of the state's widely popular sports wagering program.

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TRANSPORTATION & INFRASTRUCTURE

Lyft Says Serving Bay Area Wheelchair Users Is Onerous

Lyft argued during a California federal bench trial Thursday that providing on-demand wheelchair-accessible vehicle service in San Francisco's East Bay is unduly burdensome considering the company isn't profitable, but U.S. District Judge William Alsup suggested the service might amount to "chump change" for the publicly traded ride-hailing giant.

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EMPLOYMENT & BENEFITS

What Benefits Attorneys Should Know About SECURE Act 2.0

Benefits attorneys should familiarize themselves with the details of a bipartisan retirement bill that's currently making its way through Congress, such as an expansion of nonprofit and government plans' investment options and an auto-enrollment mandate for new 401(k) plans. Here, Law360 breaks down key components of the SECURE Act 2.0.

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Fed. Circ. Agrees To Let Gov't Appeal Shutdown-Pay Ruling

The Federal Circuit is set to sort out the apparent tension between the government's obligation under a federal law to pay wages and its obligation under another law barring spending during a shutdown, after the court said Thursday the government can appeal a wage suit ruling.

Order attached | Read full article »

Airline Org.'s Suit Over Mass. Sick Leave Law Will Go To Trial

A lobbying organization for some of the country's largest airlines won clearance Thursday to move ahead with its legal challenge to a Massachusetts sick leave law, as a federal judge said lingering questions in the case must be untangled at trial.

Order attached | Read full article »

Biden Names Obama DOL Wage Chief For Another Stint

President Joe Biden has nominated David Weil to head up the U.S. Department of Labor's Wage and Hour Division, reprising the role Weil held during the Obama administration, the White House announced Thursday.

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EEOC Says Diner's Female Servers Faced Sexual Harassment

The U.S. Equal Employment Opportunity Commission has sued a diner in New York federal court on claims that the eatery's owners sexually harassed female workers by touching them without their consent and insulting them repeatedly, creating such a hostile environment that some quit their jobs.

Complaint attached | Read full article »

EEOC Says Rehab Co. Made Workers Divulge Pregnancies

An Illinois-based rehabilitative care facility maintained an illegal policy that forced employees to reveal they were pregnant and fired multiple women who needed pregnancy accommodations, the U.S. Equal Employment Opportunity Commission alleged in a suit Thursday.

Complaint attached | Read full article »

W.Va. Justices Won't Make Nurse Arbitrate Harassment Suit

West Virginia's highest court ruled that a nurse doesn't have to arbitrate her sexual harassment suit against the state health department, adding that the agency can't escape the claims by arguing that a supervisor named in the case didn't receive notice about the allegations.

2 documents attached | Read full article »

Ex-Ill. Lawmaker Says Statutory Pay Cuts Unconstitutional

A former member of the Illinois House of Representatives is suing the state's comptroller, claiming in Illinois state court that his and other lawmakers' pay was unlawfully reduced under statutes that eliminated annual cost-of-living adjustments and required them to take furlough days.

Complaint attached | Read full article »

COMPETITION

FTC Can't Seek Restitution From Shkreli Until Congress Acts

A New York federal judge permitted the Federal Trade Commission to withdraw its bid for financial restitution against disgraced pharmaceutical executive Martin Shkreli and his company, Vyera Pharmaceuticals LLC, on Wednesday given the U.S. Supreme Court's recent ruling that the agency lacks the power to recoup money from lawbreakers.

Order attached | Read full article »

Fla., Ill. Win Concessions In $31M Keurig Brew Pod Settlement

Florida and Illinois claimants in a $31 million settlement with Keurig over coffee pod prices will get equal treatment with other states that have passed laws allowing indirect purchasers to recover antitrust damages, according to a plan filed in New York federal court.

2 documents attached | Read full article »

CYBERSECURITY & PRIVACY

House Dems Urge Review Of COVID Telework Cybersecurity

Leaders of the U.S. House oversight committee have urged government watchdogs across 10 federal agencies to investigate whether their departments are at a heightened risk for cybersecurity attacks following the pandemic-related shift to teleworking.

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AEROSPACE & DEFENSE

Biden Expands Investment Ban On Chinese Military Cos.

President Joe Biden on Thursday expanded a policy banning U.S. investments in companies affiliated with the Chinese military to include surveillance technology manufacturers, while shifting authority to make related designations from the Pentagon to the U.S. Department of the Treasury.

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Foreign Recruits Can Pursue Reworked Army Discharge Suit

A cohort of noncitizen military recruits can move forward with an expanded class action alleging that the U.S. Army discharged them without appropriate notice or explanation, a D.C. federal judge determined on Thursday, accepting their third amended complaint.

Opinion attached | Read full article »

TAX

Biden Puts Corp. AMT On Table In GOP Infrastructure Talks

In discussions with Republicans, President Joe Biden has proposed a 15% corporate alternative minimum tax combined with increased IRS enforcement as a way to pay for his infrastructure plan, a White House spokesperson said Thursday. 

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NY Senate OKs Package Reining In Local Tax Break Powers

New York's local industrial development agencies would be prohibited from providing tax breaks to lure businesses from other locations in the state as part of a package of bills passed Thursday by the state Senate. 

6 documents attached | Read full article »

IMMIGRATION

Docs Show ICE Didn't Track Consent For Alleged Sterilization

Advocacy groups on Thursday released records acquired through a Freedom of Information Act lawsuit that showed failures in oversight by U.S. Immigration and Customs Enforcement of its medical personnel at a Georgia detention center, which is at the center of allegations of medical abuses and forced gynecological procedures.

Report attached | Read full article »

Immigrant's Spouse Holds Out In IRS Stimulus Check Row

The last plaintiff standing in a proposed class of married couples of mixed immigration status who lost out on COVID-19 stimulus payments shot back at the Internal Revenue Service's call to dump her suit, reiterating her constitutional claims after the rest of her party dropped out.

Response attached | Read full article »

Mass. Sheriff Demands DHS Explain Closing Of ICE Center

A Massachusetts sheriff whose contract with U.S. Immigration and Customs Enforcement was canceled by the Biden administration is demanding an explanation and an apology for what he dubbed a political decision.

Letter attached | Read full article »

NATIVE AMERICAN

SD Gov. Undaunted After Judge Snuffs Fireworks Crusade

South Dakota Gov. Kristi Noem vowed to continue the fight after a federal judge denied her plea for fireworks-by-injunction at Mount Rushmore this July Fourth — and the Cheyenne River Sioux Tribe remains hunkered down for a long-haul fight for recognition of its constitutionally protected treaty rights to the Black Hills.

Order attached | Read full article »

TELECOMMUNICATIONS

FCC, Carriers Tell High Court To Leave 5G Order Intact

The Federal Communications Commission and wireless lobbying groups have told the U.S. Supreme Court that it needn't reopen challenges to a slate of 2018 orders that sped up and standardized the installation of 5G small cells on the local level.

3 documents attached | Read full article »

CANNABIS

Texas Asks Court To Let It Enforce Smokable Hemp Ban

Texas urged an appellate court panel Thursday to dissolve a temporary injunction prohibiting the state's health regulator from enforcing a ban on the production, processing and sale of smokable forms of hemp, arguing the challenged rule merely restated a statute in a digestible format.

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PEOPLE

UVA Class On Mueller Probe To Be Taught By ... Mueller

Former special counsel Robert Mueller, who supervised the investigation into Russian interference in the 2016 presidential election, will teach a course about that investigation to students at the University of Virginia School of Law, the school confirmed to Law360 on Thursday.

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EXPERT ANALYSIS

Mortgage Servicers Should Prepare To Be In CFPB Crosshairs

In light of recent indications that the Consumer Financial Protection Bureau will make housing security a top priority, residential mortgage servicers should prepare for increased enforcement scrutiny as foreclosures and evictions rise post-pandemic, say attorneys at Manatt.

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Shifting Trends In Marketing Approvals Of Orphan Drugs

Data analysis reveals increases in orphan drug designations and marketing approvals over the last 20 years, and shows how biologics are shaping the orphan drug landscape, say Omar Robles at Emerging Health and Ji-Won Choi at the Vera Institute of Justice.

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What Attorneys Should Know About Fee Deferral

Milestone Consulting’s John Bair explores contingency-fee structuring considerations for attorneys, laying out the advantages — such as tax benefits and income control — as well as caveats and investment options.

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LEGAL INDUSTRY

F. Lee Bailey, Disbarred Former OJ Simpson Atty, Dies At 87

F. Lee Bailey, a former lawyer who defended notorious clients including O.J. Simpson, Patricia Hearst and confessed Boston Strangler Albert DeSalvo, died in Georgia on Thursday. He was 87.

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In-House Attys From Top Law Schools, Firms Have Higher Pay

Industries across the U.S. are paying their general counsel bigger total compensation packages if they attended a top law school program or previously worked for AmLaw 100 firms, according to a survey of in-house lawyers released Thursday.

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Fragomen Bets On Biz Travel With Nomadic Acquisition

Fragomen Del Rey Bernsen & Loewy LLP has bolstered its technology arm by acquiring travel document management provider Nomadic, the global immigration law firm announced Thursday.

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Shook Hardy Expands To St. Louis With 10-Atty Enviro Team

Kansas City, Missouri-based Shook Hardy & Bacon LLP is continuing its 2021 expansion wave, opening an office in St. Louis with the addition of a 10-attorney environmental and toxic tort litigation team from Capes Sokol, the firm announced Thursday.

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2nd Circ. Boots Judge From Case Over Sentencing Orders

The Second Circuit on Wednesday ordered the removal of a U.S. district judge from a criminal case, ruling that he improperly compelled prosecutors to file a motion that permitted a sentence below mandatory minimum guidelines.

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Coronavirus Litigation: The Week In Review

The D.C. Circuit has left the U.S. Centers for Disease Control and Prevention's eviction moratorium in place, a suit accusing Airbnb of failing to repay hosts and guests for canceled bookings during the COVID-19 pandemic is heading to arbitration, and Carnival Corp. has escaped shareholder claims that it concealed coronavirus infections on its ships.

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Podcast

The Term: Computer Misuse Is Not A Federal Crime

A cop who took $5,000 to look up a stripper's license plate information may have broken department protocol and the public trust, but he did not violate federal computer crime law, Justice Amy Coney Barrett said in a decision explored by The Term podcast this week. Plus, a look at a corporate giant's failed bid to escape a $2.1 billion product liability judgment.

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