Sierra Shear

ADVISORY: Federal district court ruled that the Justice Department’s Office of Legal Counsel (OLC) must adhere to FOIA proactive disclosure requirements for all formal legal opinions resolving disputes between executive agencies. The ruling in late April, centered on the “reading-room” provision of the Freedom of Information Act (FOIA), mandates proactive disclosure of certain records by the OLC to the public. Specifically, the court held that OLC opinions on interagency disputes qualify as “final opinions” subject to FOIA proactive disclosure. While the ruling only impacts the DOJ-OLC opinions, it is critical to note that rulings along these lines demonstrate that FOIA law is far from settled and new opinions impacting proactive disclosures should be anticipated. Agencies should work to build a culture of proactive disclosure to help reduce FOIA requests and build transparency. https://hubs.li/Q02wdqmV0

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The latest Case Note from Partners Braden Core and Prasad Sharma focuses on the rise in popularity of arbitration agreements that prohibit class actions: One emerging tactic the plaintiff-side bar has been using is the so-called “mass arbitration” strategy, wherein the plaintiff’s attorney enrolls a larger number of “clients” and then brings a series of individual arbitration cases against the same defendant. The goal is to drive up the arbitration-related fees and gain leverage over the defendant in that way, a maneuver made possible by the fact that many arbitration agreements are drafted to require the business to shoulder most (if not all) of the expenses of the arbitration. Samsung was recently targeted by this tactic. One plaintiff-side law firm filed 50,000 individual arbitrations against Samsung with the American Arbitration Association (AAA). Samsung’s share of the initial filing fees alone was $4,125,000. Samsung balked and refused to pay the fees. The plaintiffs then filed a motion to compel arbitration in court, attempting to force Samsung to arbitrate over 14,000 claims individually. In 𝑊𝑎𝑙𝑙𝑟𝑖𝑐ℎ 𝑣. 𝑆𝑎𝑚𝑠𝑢𝑛𝑔 𝐸𝑙𝑒𝑐𝑡𝑟𝑜𝑛𝑖𝑐𝑠 𝐴𝑚𝑒𝑟𝑖𝑐𝑎, 𝐼𝑛𝑐., the Seventh Circuit rejected this effort because the plaintiffs’ attorneys failed to meet their burden of proving that each of their “clients” actually entered into an arbitration agreement with Samsung. For transportation providers that use arbitration, the impact of 𝑆𝑎𝑚𝑠𝑢𝑛𝑔 may be limited. The case was decided on the basis of the pleading standards under the Federal Arbitration Act, and many drivers and other transportation workers engaged in interstate commerce are exempt from that law. The pleading standard to compel arbitration under state arbitration acts may vary. However, the Court’s insistence that the plaintiff prove the existence of an agreement to arbitrate should generally apply under state arbitration law. In addition, the holding only applies in the Seventh Circuit (which includes Indiana, Illinois, and Wisconsin). In cases within the Seventh Circuit where the parties have agreed to have AAA serve as the arbitration administrator, 𝑆𝑎𝑚𝑠𝑢𝑛𝑔 makes the “mass arbitration” tactic less attractive to plaintiff-side attorneys, as they will be required to obtain evidence from each “client” confirming that they, in fact, had an arbitration agreement with the defendant. And it makes it more likely that defendants facing effective “mass arbitration” maneuvers will simply refuse to pay AAA’s fees and force the plaintiffs to court, where the procedural protections attending class and collective actions make the defense of such claims preferable to the prospect of thousands of individual arbitration hearings. More details on 𝑆𝑎𝑚𝑠𝑢𝑛𝑔 and its potential impact: https://lnkd.in/gKwCHQcv

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A barely coherent summary and set of recommendations addressing a completely incoherent situation: the application of the proposed regulations for donor-advised funds to fiscal sponsorships? What should fiscal sponsors, especially those who position themselves as donor-facing, do to not be totally thrown off by the broad scope of the DAF regulations? https://lnkd.in/gicY9eAa

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The American Bar Association on May 17 endorsed alternative attorney licensing pathways that don’t involve the bar exam, marking a major shift in ABA's stance on admission to practice law. The adoption of a new policy statement by the ABA's Council of the Section of Legal Education urges states to 'create diverse pathways to licensure.' For 103 years, the ABA has backed the use of bar exams for lawyer licensing. The revision of the policy statement, from the legal education section of the ABA, the largest voluntary organization of lawyers in the world with about 400,000 members, comes as a growing number of states are establishing alternative ways to license new law graduates. Racial disparities on bar exam pass rates and the cost of taking the bar exam are among the reasons proponents say alternatives are needed. Karen Sloan has more: https://reut.rs/4bFSvq5 #legal #legalnews #legalindustry

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NEW RULING IN U.S. CLIMATE CHANGE LITIGATION After 6 years of jurisdictional disputes going from Maryland State Court to SCOTUS and back again, there has finally been a substantive ruling in the Baltimore climate change case. In the case, Baltimore sued 25 major national and international energy companies for allegedly deceiving consumers and misrepresenting (or downplaying) the impact of using fossil fuel products. This allegedly caused increased usage of fossil fuel products, quickening and exacerbating the effects of climate change. Per Judge Videtta Brown's Opinion, issued on July 10, 2024, Baltimore's Complaint seeks to hold Defendants liable under Maryland law for out-of-state emissions made around the globe over the past several hundred years. In ruling on Defendants' Motion to Dismiss for Failure to State a Claim, Judge Brown found that "the Constitution's federal structure does not allow the application of state law to claims like those presented by Baltimore." Specifically, Baltimore's claims are preempted by federal common law (and the Clean Air Act). In part, this is because "global pollution-based complaints were never intended by Congress to be handled by individual states." In granting Defendants' Motion to Dismiss, Judge Brown further distinguished the climate change case from cases involving "dangerous products," like MTBE (a toxic fuel additive) and PCBs (a toxic chemical previously used in industrial applications). By contrast, the Judge found that "Defendants' products have not been deemed dangerous in and of themselves. Fossil fuels are a lawful consumer product guided and regulated by the EPA." The products were neither defective nor unreasonably dangerous, thus, Baltimore's claims for nuisance and product design defect could not stand. The Court similarly dismissed Baltimore's failure to warn and trespass theories. Baltimore's consumer protection act claim was also barred as outside the applicable statute of limitations. While it remains to be seen how this ruling will impact similar, ongoing cases across the U.S. (e.g., California, Hawaii, Rhode Island, South Carolina, and so forth), this is definitely a big win for Defendants. Case: Mayor and City Council of Baltimore v. BP P.L.C., et al., Case No. 24-C-18-004219. #climatechange #litigation

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Join us as we discuss AI Strategies, Data Privacy and emerging trends in AI implementation

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RJO shareholder Stephen Bacon was quoted in a recent Law360 analysis article on the impact of new federal strategies to help boost small businesses access to government contracts. The article, “Staff Squeeze May Be Limiting Small Biz Roles in Procurement,” compares a new White House report on the use of “innovative techniques and technologies'' recently introduced by the federal government, to statistics from the Small Business Administration’s (SBA) data hub on procurement. The White House report concluded that the changes lowered barriers to entry and increased competition opportunities for small businesses. However, when Law360 looked at the SBA’s data, it revealed small business participation in federal contracting has been on a steady decline for years. Bacon told Law360 that one reason this may be happening is that agencies are ignoring some techniques outlined in the White House report, such as using technical demonstration projects instead of traditional contract proposals. He said this is likely due to a perceived risk of inviting bid protests if an agency has in some way not been clear in what it asks contractors to demonstrate. "That can create novel issues around 'was the agency really at fault here because they provided instructions for the demonstration that were in error?’" he said. https://lnkd.in/g6w4aZ5N #ContractManagement #GovernmentContracting #GovernmentProcurement

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Seyfarth Synopsis: The California Supreme Court reaffirmed that arbitration agreements are on equal footing with other types of contracts. Therefore, a court should apply the same principles that apply to other contracts to determine whether the party seeking to enforce an arbitration agreement has waived its right to do so. Quach v. California Commerce Club, […] https://lnkd.in/dc_qzVX8 www.Cyprus-CEO.com #CEO #business #management #marketing #tech #AI #legal #money

Please join my colleague David Gilbert as he discusses the advantages and risks of making an IRC Section 83(b) election. The webinar, hosted by Strafford, will delve into scenarios where the election is advantageous, the caveats to consider, and the steps for submitting the election. Don't miss it!

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I will be speaking on a panel for the ABA Antitrust Section analyzing Pennsylvania's proposed state antitrust legislation as well as the role of state antitrust statutes generally. Pennsylvania is currently the only state without its own antitrust statute. For anyone interested in attending, the link is here: https://lnkd.in/ey-DnUq9

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On June 27, 2024, the United States Court of Appeals for the Fourth Circuit affirmed a Maryland district court judgment that confirmed arbitral awards issued in favor of Seiden Law’s client, the Estate of Ke Zhengguang. The case has been discussed on Law360 and Bloomberg Law; articles on the case can be found in the link after the jump. The underlying arbitration concerned a complex dispute related to real property in mainland China, which culminated in an arbitration before the Hong Kong International Arbitration Centre (HKIAC).   Between 2018 and 2020, the HKIAC issued a series of awards.  The Estate filed a petition to confirm the awards in a Maryland district court against one of the arbitral respondents, Stephany Yu, who lives in Maryland.  In January 2023, the district court confirmed the awards and issued a $4 million judgment in favor of the Estate. The Fourth Circuit’s unanimous twenty-three-page decision addresses important questions related to the enforcement of international arbitral awards in the United States, including the availability of a forum non conveniens defense under the New York Convention, and whether arbitral awards that are denominated in a foreign currency can be converted into US dollar judgments.  The Fourth Circuit held that a forum non conveniens defense was inapplicable under the facts of this case, even if such a defense is available under the Convention. The Fourth Circuit also held that it was reasonable for the district court to enter judgment in US dollars, notwithstanding that the arbitral panel’s merits award was denominated in Chinese Renminbi (RMB). Seiden Law partner and litigation chair Amiad Kushner argued the appeal. Senior counsel Jennifer Blecher and Senior Associate Xintong Zhang were on the brief. Paralegal Lily Dempsey provided invaluable assistance. https://lnkd.in/eNQPgVax https://lnkd.in/eFD4zniu

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Sen. Cantwell's senior counsel discusses proposed American Privacy Rights Act negotiations: U.S. Senate Committee on Commerce, Science and Transportation Senior Counsel Shannon Smith said during an IAPP LinkedIn Live 15 April that the Senate will shortly begin its formal legislative work on the proposed American Privacy Rights Act. Smith, a lead Senate drafter of the APRA discussion draft, also took time to discuss how the House and Senate crafted the bill and addressed its most contentious provisions. IAPP News Editor Joe Duball has the details. Full story #dataprotection #dataprivacy #privacy

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We are thrilled to announce the publication of Volume 92, No. 3! The works featured in this issue of the George Washington Law Review are: Representations & Warranties, Fraud, and Risk Shifting: An Analytical Framework, by Steven L. Schwarcz Effectively Irrebuttable Presumptions: Empty Rituals and Due Process in Immigration Proceedings, by Tiffany Lieu Free Speech Originalism: Unconstraining in Theory and Opportunistic in Practice, by Caroline Mala Corbin Antitrust Enforcement in the Pharmaceutical Industry: Analyzing Patents Under the Rule of Reason, by Charlie Schmidt Helpful Industry or Officious Intermeddlers: Assessing U.S. Champerty Law Through the Lens of Third-Party Funding in International Dispute Resolution, by Wolfgang Paulson Read them here: https://lnkd.in/eQDbKDc2

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New US Supreme Court decision opens doors for larger claims for damages in copyright infringement cases! Learn more about the US Supreme Court's ruling in this article by Susan Kayser, Eric Lee, and RiKaleigh Omosheyin on The National Law Review! Article: https://lnkd.in/gtvfaNwc #TifanieJ #entertainmentlawpartners #ELP #entertainmentnews #entertainmentlegal #entertainmentlaw #entertainmentattorney #entertainmentlawyer #businessaffairs #productionlegal #hollywood #entertainmentfinance #supremecourt #copyright #copyrightinfringement #intellectualproperty

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From Shipkevich PLLC: The Telephone Consumer Protection Act landscape continues to evolve as new #legislation is implemented and courts across various jurisdictions grapple with complex issues regarding standing, agency, and consent. This mid-year update provides a synopsis of the new Federal Communications Commission amendments to the TCPA as well as a succinct analysis of recent case law shaping the TCPA's enforcement and interpretation. Legal professionals and industry stakeholders should take note of these recent developments as they may signal significant trends and legal benchmarks. #tcpa #fcc #telemarketing #telecommunications

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How did the Kirkland partner video get leaked is the question we’re asking ourselves. Some are recalling the infamous ‘Claire Swire email’ which involved a Norton Rose lawyer from way back at the dawn of time in 2000 and the one too from a CC lawyer back in 2003. *All articles and videos can be found in the comments section. Clifford Chance Adopts US-Style Bonus System for Associates: Clifford Chance has revamped its bonus system for UK associates to align more closely with those offered by US firms, according to The Lawyer . The new system, introduced last month, rewards associates more when they are in higher demand, with bonuses linked to the number of hours billed. This US-style focus on billables marks a departure from the ‘no target-hours culture’ prevalent at many UK firms. Clyde & Co Boosts Revenue by 10%: Clyde & Co has reported strong financial results for the past year, with revenue growing by 10% to £845 million. Profit per equity partner (PEP) increased by 4% to £739,000. The firm attributed its growth to success across various practice areas, emphasizing its "sector-focused, geographically hedged" model. Over the year, Clyde & Co added 32 new partners through lateral hires and internal promotions. Kirkland & Ellis Partner Video Goes Viral in the City: A video leaked to RollOnFriday shows two Kirkland & Ellis partners in London mocking a fellow partner during a work call, culminating in him knocking over a bottle of whisky. The footage, recorded in Kirkland's London office in the Gherkin, is circulating among City lawyers. In the video, the partner gives the middle finger to the person filming but nearly drops a bottle of Macallan whisky before catching it. Reactions in the comments are mixed. One top comment expressed sympathy, saying, "can't believe anyone leaked this… poor guy," while another suggested, "I'd be sacking this bunch of jokers. You know this is just the tip of the iceberg." Partner's 4,000 Hours Help Sullivan & Cromwell LLP Hit $200 Million Mark: Sullivan & Cromwell’s fees for the ongoing bankruptcy of cryptocurrency exchange FTX have reached $200 million, largely thanks to the efforts of a single partner. Litigation partner Brian Glueckstein has averaged 11 hours a day, five days a week, for 18 months, billing more than 4,000 hours at a rate of $2,375 per hour, amounting to $9.5 million. Sullivan & Cromwell lawyers have collectively billed over 168,000 hours on the matter so far, reports Reuters. CC: Non-Billable

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#BilzinSumberg Trial & Litigation Attorneys Robert L. Raskopf, Kenneth Duvall, Megan Barney, and Patricia Patino examine the US Supreme Court's decision to remand cases from Florida and Texas concerning laws that limit social media platforms' content moderation back to the lower courts. The Bloomberg Law article highlights that the Court's guidance suggests that social media communications and their moderation are protected under the First Amendment. The decision highlights the ongoing legal debate about whether social media companies can be treated like common carriers, which would require them to allow all content without discrimination. The cases will return to the lower courts for further analysis, with significant implications for the future of digital communication and free speech. Read the full article: https://bit.ly/4cN0rXE

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