New & Noteworthy - June 4, 2024

New issue: Reading the Reviews   In honor of Pride Month, this issue of Reading the Reviews features an article by Chief U.S. Magistrate Judge Willie J. Epps [W.D. – MO] on the appointment of the first openly gay federal judges. See how courts have historically defined “sex” and read about the Respect for Marriage Act. Consider how anti-drag laws violate the First Amendment and learn about how groups advocating for queer rights invoked contract law during the 1950s and 1960s. Finally, take a closer look at the opinion in 303 Creative and its impact on the gay community.   View issue.

Ninth Circuit Clarifies Standard for Breach of Plea Agreement (Bloomberg) "The Ninth Circuit Monday clarified the standard for what constitutes an implicit breach of a plea agreement by a federal prosecutor—likening such agreements to contracts between the government and a defendant—and said the government’s arguments must be made in good faith. ‘As long as the agreement does not expressly prohibit the government from responding to a defendant’s request for a sentence lower than what is recommended by the government, the government has the latitude to respond,’ the court ruled in a divided en banc opinion by Judge Milan D. Smith Jr."

Ninth Circuit Dismisses Conservative Journalist’s First Amendment Lawsuit Against San Francisco Supervisor Dean Preston (Courthouse News Service) "The Ninth Circuit ruled Monday that San Francisco Supervisor Dean Preston was legally allowed to block a conservative journalist’s publication from his Twitter account. Susan Reynolds sued Preston in 2022, claiming he violated her First Amendment rights when he blocked her publication, The Marina Times, from his public Twitter account in 2020. Reynolds said that Preston blocked her because she was critical of his policies to cut funding to police and prisons."

NRC Properly Addressed Diablo Canyon Nuke License, PG&E Argues (Bloomberg) "The Ninth Circuit should reject arguments from two environmental groups that US nuclear regulators illegally issued license decisions since 2008 that benefited the Diablo Canyon Power Plant in California, the plant’s owner told the court. The litigation, filed in November 2023, is part of a broader ‘effort to derail the renewal of Diablo Canyon’s licenses or even force its immediate closure,’ Pacific Gas and Electric Co. wrote in a brief filed May 31."

California Pizza Kitchen Hack Deal Is Half Baked, 9th Circ. Told (Law360) "An attorney for objectors to a settlement between a class of current and former California Pizza Kitchen employees and the restaurant chain over a data breach told a Ninth Circuit panel on Monday that the district court did not properly scrutinize the deal or allegations of collusion between the parties. The objectors' attorney, Theodore Walter Maya of Ahdoot & Wolfson PC, told the panel that the deal is worth far less than the $3.7 million valuation assigned by California Pizza Kitchen and the settling plaintiffs."

Enviro Groups Ask 9th Circ. to Affirm Blocked Logging Plan (Law360) "Several environmental groups have urged the Ninth Circuit to uphold a Montana federal judge's decision halting a large logging operation in the Kootenai National Forest over concerns about the project's effect on grizzly bears and old-growth trees. The green groups argued Friday in separate briefs that the U.S. Fish and Wildlife Service and the U.S. Forest Service err in backing the Black Ram Project in the Kootenai National Forest, saying the logging project would significantly harm a small grizzly bear population in the Cabinet-Yaak Ecosystem in northwestern Montana and northeastern Idaho."

Arizona Students Denied Relief from Suspensions for Pro-Palestine Protests (Courthouse News Service) "A federal judge declined on Friday to reverse disciplinary action given to 20 Arizona State University students who were arrested and suspended for a campus protest against U.S. support of Israel's actions in Gaza. The 20 plaintiffs in the case were among more than 70 students arrested by university police Saturday during a campus sit-in objecting to the United States' continued military aid to Israel, which has killed more than 35,000 Palestinians in the ongoing Israel-Hamas war."

Kroger, Albertsons Can't Get More Info on FTC Markets (Law360) "An Oregon federal judge denied Kroger and Albertsons' requests for more information on the markets at issue in the Federal Trade Commission's ongoing attempt to block their merger, saying the companies' request is premature and excessively broad. In a motion to compel in May, the supermarket chains jointly requested the underlying basis for the FTC's market share and concentration figures — including the Herfindahl-Hirschman Index, a measure for market competition and concentration, and boundaries for each geographic market the FTC is claiming would be harmed by the merger."

Google Can’t Escape Class Action Claiming It Collected, Read Private Tax Information (Courthouse News Service) "Google must face class action claims that it collected and recorded private information from people who used tax filing websites such as H&R Block in violation of state and federal wiretapping laws. Google users from across the country showed they have a reasonable expectation to their tax information being kept private, and that Google Analytics breached that expectation when it intercepted their data, U.S. District Judge P. Casey Pitts [N.D. - CA] said in a 14-page ruling Monday dismissing Google’s attempt to toss the claims."

Equifax Judge OKs $1.1M Atty Fees in Debt Reporting Deal (Law360) "Attorneys will recover $1.1 million in fees for securing $500 payments for class members in litigation alleging Equifax reported unenforceable debts, a decision that comes several months after a California federal judge warned he would likely hold a portion of the fees until he learned the ultimate settlement payout. In an order granting the settlement final approval Friday, U.S. District Judge Charles R. Breyer [N.D. - CA] called the fees granted to Consumer Litigation Associates PC attorneys 'reasonable and appropriate under all of the circumstances presented.'"

US Judge Won't Move Emission Case Out of California (Daily Journal) "A lawsuit against Ram and Jeep vehicle manufacturer FCA US LLC claiming some of its cars used defeat devices to cheat diesel emission standards will remain in California as a federal judge on Monday denied the company's bid to move the case to Michigan. While there is no dispute that the Eastern District of Michigan, where FCA US is based, could exercise personal jurisdiction over the defendant, all the named plaintiffs reside in California and all of them purchased the at-issue vehicles in California, wrote U.S. District Judge Jacqueline Scott Corley in San Francisco."

Some Racketeering Claims in $92M Award Suit Can Proceed (Law360) "A Monaco bank and a Luxembourg lawyer and trust administrator must face racketeering claims accusing them of helping to hide the fortune of a Russian businessman who's on the hook for a $92 million arbitral award, a California federal judge ruled on Friday. U.S. District Judge R. Gary Klausner [C.D. - CA] partially rejected summary judgment motions submitted by a Monaco bank and a Luxembourg lawyer and trust administrator, saying Russian businessman Vitaly Ivanovich Smagin could proceed with claims that they conspired with Smagin's former business partner, Ashot Yegiazaryan, to keep the money out of Smagin's reach."

Bookstores Can't Step into FTC's Antitrust Fight with Amazon (Law360) "A Washington federal judge on Monday declined to allow booksellers to intervene in the Federal Trade Commission's antitrust suit against Amazon to raise concerns about the digital retailer's book sales and agreements with publishers, but invited them to seek permission to file an amicus brief instead. In a one-page order, U.S. District Judge John H. Chun [W.D. - WA] denied a motion to intervene filed April 26 by the American Booksellers Association, which is a national nonprofit trade group that represents over 2,500 independent bookstores." 

Las Vegas Newspaper Fights Rival's Bid to Set Trial Date (Law360) "The Las Vegas Review-Journal and the Las Vegas Sun are at each other's throats over setting a trial date in a years old dispute accusing the Review-Journal, formerly owned by the now-deceased conservative and billionaire Sheldon Adelson, of trying to drive its more liberal rival out of business. The Las Vegas Sun has asked the Nevada federal court overseeing the case to set a trial date for the summer of 2025, lest the trial be delayed to 2026, but the Las Vegas Review-Journal held firm Thursday on its opinion to stay the suit until the Ninth Circuit responds to its appeal."

Lawyers Vying for 23andMe Data Breach Leadership Fear Bankruptcy Imminent (The Recorder) "A federal judge in California heard arguments from more than a dozen plaintiffs’ lawyers on whether the data breach lawsuits against 23andMe Inc. should head straight to settlement given its precarious financial condition. 23andMe, the South San Francisco-based genetic testing company, faces dozens of class actions brought on behalf of nearly seven million consumers whose personal information, including highly sensitive genetic profiles, was hacked last year. At a Monday hearing in San Francisco, U.S. District Judge Edward Chen said he was inclined to pause on formal discovery after many plaintiffs’ lawyers, some of whom already have participated in two mediation sessions, and said 23andMe was headed toward bankruptcy."

California EV Maker Rivian Accused of Securities Fraud in New Class Action (The Recorder) "Following a string of workforce cuts, disappointing earnings calls and stock market slumps in the past year, California electric vehicle (EV) manufacturer Rivian faces a new securities class action alleging that it defrauded investors. The complaint, filed on Friday in the Central District of California, claims that Rivian made ‘materially false and misleading statements’ between the period of August 12, 2022 to February 21, 2024. It said that Rivian periodically cited ‘strong demand’ signaled by its backlog of EV preorders and planned production ramp-ups despite never having turned a profit since its founding in 2009. Rivian CEO and founder Robert J. Scaringe and Chief Financial Officer Claire McDonough are named as defendants."

Justice Gorsuch Calls Colleagues 'Best Writers' in History (Law360) "Shortly after the U.S. Supreme Court had wrapped up the oral argument portion of its term a month ago, Justice Neil Gorsuch was commiserating with his daughter, who was nearing the close of her college semester. ‘Her life and mine looked pretty similar at the time,’ the justice said. ‘All the classes have been attended and you've heard all the arguments and you've read all the materials you're supposed to read, and now you have to produce the work. It's term paper time.’ Justice Gorsuch shared the anecdote with an audience of lawyers, academics and legal luminaries at the 25th annual Burton Awards on May 20 in Washington, D.C., in a keynote conversation with event host Chris Wallace."

How Good is the TSP’s G Fund? Are You Using It Wisely? (FedSmith) "The G Fund in the federal government’s Thrift Savings Plan (TSP) is a valuable part of the future retirement income for federal employees. For new federal employees who may not be familiar with it, the G Fund is the Government Securities Investment Fund. The objective of this fund is to preserve capital and generate returns above those of short-term U.S. Treasury securities."