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What to Watch in Government's Fight for Visitor Info on Anti-Trump Website

The government will try to convince a judge next week to let it seize records of everyone who visited a website used to organize protests during President Donald Trump’s inauguration.

The company, DreamHost, refuses to comply with a search warrant that requests a broad swath of information related to a website it hosts, disruptj20.org, which was used to organize protests during Trump’s inauguration. The U.S. Attorney’s Office in D.C. filed a motion with the D.C. Superior Court to require DreamHost to show cause as to why it shouldn’t be required to comply. Chief Judge Robert Morin is set to hear the case on Aug. 24.

DreamHost argues the warrant, which requires the disclosure of information on more than a million website visitors, is a stark violation of users’ Fourth Amendment rights. The company’s lawyer, San Francisco-based Raymond Aghaian of Kilpatrick Townsend & Stockton, said he isn’t aware of any similar cases in the D.C. court.

“What really stood out to us is the scope and breadth of the information that was requested, which was unusual,” Aghaian said. “This [warrant] would allow the government to essentially see and identify who these folks were that were on the site and what they did.”

The company created a page on the crowdfunding website CrowdJustice on Friday to help pay for the legal costs of the fight. The page raised $940 by 12:30 p.m. Friday, with a goal of $10,000.

A spokesman for the U.S. Attorney’s Office declined to comment beyond its court filings.

Unlike the government’s motion, the affidavit explaining why the warrant is necessary is sealed. More than 200 people have been indicted so far on rioting charges in connection with the Jan. 20 protests in D.C.

The case touches on the question of how much leeway the government has to search electronic communications. The issue is currently playing out in both state and federal courts across the country.

Just this week, technology companies including Apple and Google filed amicus briefs in a case to be heard at the U.S. Supreme Court next fall on whether the government needs a warrant to collect cellphone data. The New York Court of Appeals, the highest court in that state, declined to quash a government warrant earlier this year to search Facebook account information for more than 100 users.

So what legal issues will be in play in this case? Here’s what to know:

The Fourth Amendment: The government’s warrant asks for all records pertaining to the DistruptJ20 website, which includes identifying information about which computers accessed the site and when, as well as emails associated with the site, DreamHost said in its brief. The company said that includes not only the email addresses of the organizers of the site but also the content of emails sent to them through the site.

As an electronic communications service provider, DreamHost receives hundreds of warrants and other legal requests per year, Aghaian said. But in this case, the government didn’t put any limits on its request.

“Everything that we had, they wanted,” he said.

In its motion to show cause, the government said the court “already imposed limitations” on what DreamHost is required to produce when it issued the warrant. The limitations, the brief said, are clear: the government can only search the types of records it noted in the warrant, and can only seize “information that constituted ‘evidence, contraband, instrumentalities, or fruits of violations of [D.C.’s rioting code].’”

DreamHost isn’t alone in claiming the warrant is overly broad. Jim Harper, vice president of the pro-business group Competitive Enterprise Institute and a former member of the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, also filed a brief earlier this week in the Supreme Court cellphone case.

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Source: Law Journal

For Plaintiffs Bar, Taking on J&J Means Battling a Shadow Foe

Pay attention to mass torts litigation and it’s hard not to notice a certain feedback loop between Johnson & Johnson’s products liability docket and the tort reform agenda of the U.S. Chamber of Commerce.

The Chamber likes to use real-world stories of lawsuits run amok to fuel its advocacy, and it’s got no shortage of examples, thanks to Johnson & Johnson. The group often points to J&J cases when it lobbies to tighten venue rules, limit plaintiffs bar advertising and curb third-party litigation funding.

Meanwhile J&J raises alarm bells about the very same issues in its court fights, echoing the Chamber’s agenda and creating courtroom sideshows that air the group’s pet issues but have little apparent effect in those suits.

And then there’s John Beisner, chairman of the mass torts practice at Skadden, Arps, Slate, Meagher & Flom, who’s a top lawyer to both.

While coordination between companies and trade associations is a common litigation and lobbying strategy, the J&J-Chamber ties are notable for their closeness, constancy and for being unusually reciprocal. Typically, it’s an association that carries water for the industry but J&J is also a champion for the Chamber and boosts the organization’s broader tort reform positions.

It can make it hard to tell where J&J’s advocacy ends and the Chamber’s begins. Whether the dynamic is intentionally choreographed or borne of aligned interests, plaintiffs lawyers going up against the New Jersey-based conglomerate have come to expect that Beisner’s arguments in court will echo the Chamber’s advocacy.

“They’ve got the same mouthpiece,” said Texas plaintiffs attorney W. Mark Lanier. “They’ve got the same source of money, they’ve got commonality of directors, and they parrot the same mission.”

Michael Krauss, a professor at George Mason University’s Antonin Scalia Law School who teaches about legal ethics and torts, said the Chamber likely sees the flood of suits against Johnson & Johnson as a proxy for its tort reform fights. J&J is like the “canary in the coal mine” for the Chamber, said Krauss.

“If J&J gets crushed, a lot of its other members get crushed,” he said. “The Chamber sees the world the same way that Johnson & Johnson sees the world.”


Beisner did not respond to a request for comment. But in an earlier interview, he denied the existence of any “special relationship.”

The Chamber files “numerous amicus briefs every year in support of a wide array of companies and comment on various things,” he said. Johnson & Johnson, he said, is “a member, but there are a lot of other members, hundreds of members.”

There’s no doubt the Chamber’s advocacy on behalf of one industry player can pay wider dividends. A significant win on tort reform this past year came in a fight for a different drugmaker, Bristol-Myers Squibb Co. Yet the U.S. Supreme Court’s decision in that case, deemed a game-changer for mass torts, prompted a Missouri judge to immediately halt a talcum powder trial against J&J.

In addition to Beisner’s dual role, Johnson & Johnson general counsel Michael Ullmann was a board member of the Chamber’s Institute for Legal Reform as of 2015, according to the most recent publicly available information. Chamber officials refused to provide more recent data or confirm whether he was still a board member.

In an emailed statement, Harold H. Kim, executive vice president of the Chamber’s Institute for Legal Reform, said that the group “has advocated for reforms to the country’s civil justice system on behalf of the entire business community,” not just Johnson & Johnson. “Lawsuit abuse adversely affects our national economy and stifles innovation and job creation,” Kim wrote. “We will continue to be a voice for commonsense legal reforms.”


Johnson & Johnson is fending off tens of thousands of products liability lawsuits over talcum powder products, its transvaginal mesh devices, hip implants and widely used prescription medications including antipsychotic Risperdal and blood thinner Xarelto. (A description of ongoing legal proceedings in the company’s most recent quarterly report filed with the U.S. Securities and Exchange Commission goes on for more than 10 pages.)

A host of law firms in addition to Beisner’s Skadden have been involved in those cases. Among them: Drinker Biddle & Reath and Shook, Hardy & Bacon.

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Source: Law Journal

Makers of Xarelto Rack Up Third Defense Verdict in Third Trial

For plaintiffs in Xarelto litigation, the third time was not the charm.

A jury in the third bellwether trial over the blood thinner Xarelto has sided with defendants Janssen Pharmaceuticals Inc. and Bayer—again. The verdict, rendered on Friday, came about three hours after the jury began deliberating and despite the absence of star defense attorney Beth Wilkinson. The trial also was in Jackson, Mississippi, not New Orleans.

Statements from both Bayer and Janssen noted that the verdict was the third defense win in the Xarelto litigation.

“The jury’s decision reflects the facts of this case and the appropriateness of Xarelto’s (rivaroxaban) FDA-approved design and labeling,” wrote Sarah Freeman, a spokeswoman for Janssen, which is part of Johnson & Johnson. “We will continue to defend against the allegations made in this litigation.”

Bayer spokeswoman Sasha Damouni Ellis added in an emailed statement, “Plaintiffs’ attorneys in these cases have presented multiple theories to juries regarding the alleged inadequacy of the Xarelto label, and all three juries have rejected their claims and found in favor of the companies.”

One of the lead plaintiffs’ attorneys, Andy Birchfield, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama, stood by the plaintiffs’ claims — in particular, that the defendants should have instructed doctors to conduct a simple blood test that could assess a patient’s risk of bleeding. He also showed no signs of backing down.

“We will continue fighting for the thousands of innocent victims injured or killed by this drug,” he wrote. “The makers of Xarelto need to be candid about the risks posed by this blood thinner. Johnson & Johnson, Janssen Pharmaceuticals and Bayer Healthcare engaged in aggressive direct-to-consumer, physician marketing and advertising campaigns, but gave little weight to the dangers of Xarelto because they were more focused on their business plan than patient safety.”

More than 18,000 cases allege that Xarelto, an anticoagulant used to treat blood clots, caused plaintiffs to suffer from uncontrollable internal bleeding.

This month’s case was brought by Dora Mingo, a resident of Summit, Mississippi, who was admitted to the hospital in 2015 for gastrointestinal bleeding less than a month after taking Xarelto to treat a blood clot in her leg following hip replacement surgery.

Wilkinson, of Washington, D.C.’s Wilkinson Walsh + Eskovitz, scored speedy defense verdicts on May 3 and June 12 in the first two Xarelto trials.

This time, Janssen relied on Richard Sarver of Barrasso Usdin Kupperman Freeman & Sarver, who was involved in the first Xarelto trial and is based in New Orleans. Bayer was represented by Lyn Pruitt of Mitchell Williams in Little Rock, Arkansas, and Walter T. Johnson at Watkins & Eager in Jackson, Mississippi.

Aside from the verdict, another aspect of the third trial remained the same: All the juries have taken between two to three hours to make their decision.

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Source: Law Journal

Billionaire Investor Icahn Resigns from Regulatory Role Amid Conflict-of-Interest Concerns

The White House in Washington, D.C.
The White House in Washington, D.C.

Mike Scarcella

Billionaire investor Carl Icahn stepped down Friday as a special regulatory advisor to President Donald Trump, citing “partisan bickering” over whether he was leveraging his White House role to advance his business interests.

Icahn’s resignation came with Trump’s blessing, the investor wrote, and capped a week marked by an exodus of top executives and business leaders from White House advisory panels in response to the president’s comments to the recent violence in Charlottesville.

The resignation letter, posted on Icahn’s personal website, makes no mention of Trump’s widely-criticized reaction to the white supremacists who descended upon the Virginia city. Instead, Icahn said he did not want the conflict-of-interest concerns surrounding his role to “in any way cloud your administration or Ms. Rao’s important work”—a reference to Neomi Rao, administrator of the Office of Information and Regulatory Affairs.

Icahn denied profiting off of his role and downplayed his involvement with the Trump administration, writing Trump that “because of your extremely busy schedule, as well as my own, I have not had the opportunity to spend nearly as much time as I’d hoped on regulatory issues.”

“I never had a formal position with your administration nor a policymaking role. And contrary to the insinuations of a handful of your Democratic critics, I never had access to nonpublic information or profited from my position, nor do I believe that my role presented conflicts of interest,” he wrote. “Indeed, out of an abundance of caution, the only issues I ever discussed with you were broad matters of policy affecting the refining industry. I never sought any special benefit for any company with which I have been involved, and have only expressed views that I believed would benefit the refining industry as a whole.”

Icahn wrote that he had received numerous inquiries about whether his unofficial position overlapped with Rao’s Senate-confirmed role.

“As I know you are aware, the answer to that question is an unequivocal no, for the simple reason that I had no duties whatsoever,” he wrote.

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Industry Reacts to Charlottesville; Ex-Bancroft Partner Joins OMB; Jay Sekulow’s New Music Video

Washington Wrap is a weekly roundup of Big Law hires and other Washington, D.C., legal industry news. Read the previous edition here. Send tips and lateral moves to Katelyn Polantz at kpolantz@alm.com.

A week later, much of the nation is still reeling from the events in Charlottesville. The legal industry is no exception.

The Miller Law Group in Charlottesville felt the most devastating loss. Heather Heyer, a legal assistant at the firm, was killed when a car driven by a white supremacist protester rammed through a counter-protest crowd. The firm remembered Heyer as conscientious and empathetic, “like family.”

A different Virginia firm, the Miller Firm in Orange, Virginia, is bringing a civil suit on behalf of two women injured in a car during the ramming.

Lawyer Charles “Buddy” Weber Jr., a solo practitioner in Charlottesville, will defend James Alex Fields Jr., the driver charged after the crash.

A magistrate judge in Georgia who insulted protesters while he defended Confederate monuments resigned from his job. And the Tennessean newspaper and Above the Law blog noted how how a Bass, Berry & Sims partner—and former federal judge—donated to a group that supported the neo-confederates in Charlottesville. The lawyer, Robert Echols, said he gave the donations at the request of his Bible study leader and thought they’d go toward a Christian school. Bass, Berry & Sims told the Tennessean it launched an internal investigation.

Several large corporate defense firms weighed in with internal and public statements, condemning violence, hate speech and the defense of indefensible groups. They also pledged their institutions to pro bono work, diversity and equality.

Jenna Greene, who writes the Am Law Litigation Daily column, called on the firms that represent President Donald Trump and his businesses to take a stand against their client’s widely-condemned response to the violence. But they weren’t alone in staying silent. Many of the Jewish lawyers in Trump’s inner circle also kept quiet—save Trump personal attorney Michael Cohen, who tweeted a collage of pictures of himself with friends who are black.

Some prominent business lawyers, meanwhile, were more than willing to speak out.

Here’s what Marty Lipton of Wachtell, Lipton, Rosen & Katz wrote in an email to Bloomberg Business of Law: “I am appalled by President Trump’s statements about the events in Charlottesville. Hate and bigotry are offensive to the American Constitution, the American dream and the overwhelming majority of the American people. I join with and I applaud those business leaders, public officials and others who have disassociated themselves from President Trump’s statements.”

I’ve collected about a dozen other law firm statements on my Twitter feed—though none of them mention Trump by name.

The week’s lateral moves:

  • Partners Barbara Werther and David Mancini joined Troutman Sanders’ construction practice in D.C. this week. Their departure from Sedgwick means that firm’s D.C. office will close.
  • Scott McKeown left Oblon, McClelland, Maier & Neustadt to lead Ropes & Gray’s Patent Trial and Appeal Board practice as a partner out of Washington.
  • Akin Gump Strauss Hauer & Feld added a pro bono counsel. Lauren Connell, who’s been with the firm since she graduated from law school in 2014, will help manage the firmwide pro bono efforts.
  • Bill Paxon, the former Republican congressman from New York, retired from Akin Gump after almost 20 years at the firm.
  • Cozen O’Connor hired Barry Kearney as of counsel in Washington. He joins the firm from the National Labor Relations Board, where he was the long-time associate general counsel.
  • John McInnes joined Arnold & Porter Kaye Scholer as counsel in the D.C. office’s life sciences and health care regulatory practice. He was a division director at the Centers for Medicare and Medicaid Services. He previously was an associate at Arnold & Porter. McInnes is also a medical doctor, with a specialization in ophthalmology.
  • The American Bar Association several new leaders this month. Elizabeth Lee from the D.C. office of Womble Carlyle Sandridge & Rice will be the real estate section chair.
  • Jeffrey Harris left Kirkland & Ellis’ partnership to become associate director of the federal Office of Information and Regulatory Affairs, within the Office of Management and Budget, on Aug. 14. He moved to Kirkland with the crowd from Bancroft last year.

In other D.C.-area industry news:

  • Steptoe & Johnson LLP denies it pays men and women differently and is asking for a pay discrimination lawsuit to move to arbitration. A former staff attorney in California had sued the firm.
  • TheDCist profiled former Katten Muchin Rosenman associate Meghan Evans’ quest to design clothing for tall women. Her line launched this month online.
  • David Friedman isn’t just a former name partner at Kasowitz Benson Torres and the current U.S. Ambassador to Israel. He represented accused killer Robert Durst. My colleague Christine Simmons has more on Friedman’s clients, wealth and business interests.
  • The Washington Post raised questions about a Brownstein Hyatt Farber Schreck client’s influence on David Bernhardt, a firm partner-turned-deputy interior secretary.
  • Steven Peikin of Sullivan & Cromwell and William Hinman of Simpson Thacher & Bartlett may have stock holdings and legal clients that could complicate their work at the U.S. Securities and Exchange Commission, according to Reuters.
  • Presidential son-in-law Jared Kushner and other top advisers will owe the federal government $200 fines for filing their federal financial disclosures late.
  • Law professor Steven Harper hammered Morgan, Lewis & Bockius for its tax counsel work for Trump.
  • Note this paragraph from a Politico story about the tone inside the Trump White House this week: “The president had grown tired of White House lawyers telling him what he could and could not do on the ban and numerous other issues such as labor regulations, said one informal White House adviser. While multiple factors were in play with the transgender ban, Trump has grown increasingly frustrated by the lawyers’ calls for further study and caution, so he took it upon himself to tweet out the news of the ban, partly as a reminder to the lawyers who’s in charge, the adviser said.”
  • Jay Sekulow, one of the president’s lawyers, released a music video with his band, the Jay Sekulow Band, this month. It’s on the band’s Facebook page.
  • Another Trump lawyer is in hot water for forwarding an offensive email.
  • Peter Strzok, a former FBI investigator, has left the Mueller investigation team. He’s now working for the FBI’s human resources division, according to ABC News.
  • The Daily Beast dropped this nugget regarding the Russia investigation: Paul Manafort and Michael Flynn may be struggling to pay their legal bills.
  • Another blip in the Russia investigation news: The Washington Post reported how George Papadopoulos, an adviser on the Trump campaign, tried to get the the Trump side to meet with Russians, until others on the campaign staff said no.
  • Supreme Court Justice Neil Gorsuch will deliver a speech at the Trump International Hotel next month.
  • Reporters all over town rejoiced last week when the D.C. Superior Court launched a new online docket search that includes document attachments.
  • Behold Michael Davis, who followed an unconventional career path to clerk for Supreme Court Justice Neil Gorsuch.
  • My colleague Ben Hancock invited Mayer Brown partner Raj De, a former National Security Agency general counsel, onto his podcast to discuss legal work and federal regulation.
  • Make sure you wear your special glasses for the solar eclipse Monday! In the meantime, read this retelling of the time Richard Ben-Veniste faked a solar eclipse in front of the White House, for the benefit of Hollywood and Freddie Mercury.
  • It’s the end of an era at The National Law Journal. Beth Frerking, our magazine’s editor-in-chief since 2013, will leave us and Washington next month to become head of the San Antonio, Texas, non-profit newsroom The Rivard Report. Farewell, Beth!

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Source: Law Journal

DreamHost Launches Funding Campaign for Legal Fight Against DOJ

SAN FRANCISCO — Web service provider DreamHost is turning to an online litigation crowdfunding platform to help cover the costs of challenging a U.S. Department of Justice warrant that seeks information about visitors to an anti-Trump protest website.

The company is seeking to raise $10,000 through its campaign on CrowdJustice, a kind of “Kickstarter for lawsuits” site that originated in the U.K. and launched operations in the United States in January. The cutoff date for the funding campaign is Sept. 16.

By mid-day Friday, the DreamHost campaign had drawn $940 from 13 donors, according to the site. No money is actually donated unless the target is reached.

“We are fighting a highly untargeted demand that chills free association and the right of free speech afforded by the Constitution,” DreamHost’s general counsel, Chris Ghazarian, said in a joint press release circulated by the company and CrowdJustice on Friday.

“This will affect not just DreamHost and online service providers, but all internet users who want to protect their legal browsing history from the government,” Ghazarian added. The Los Angeles-based company first announced the funding campaign in a blog post on Thursday.

Julia Salasky, CEO of CrowdJustice, said the platform “is committed to helping individuals and organizations defend and advance rights under the law … This is a powerful way for people who believe in internet privacy to rally around DreamHost.”

This is not the first time that the crowdfunding site has been used to aid legal efforts against the Trump administration. In a high-profile case soon after its U.S. launch, advocates for the Aziz brothers—two Yemeni nationals who were detained and deported after the rollout of the White House’s travel ban—raised $36,600 in three days to aid their legal effort.

Salasky, however, has said that the platform remains politically neutral and will only refuse to host legal campaigns that are patently bogus or violate the site’s terms of service.

Reuters has reported that a number of other crowdfunding sites have pulled down campaigns to raise legal funds for the man charged with killing Heather Heyer at the protests in Charlottesville, Virginia, citing policies that prohibit the promotion of hate speech or violence.

The DOJ search warrant against DreamHost requests all information related to a website it hosts, disruptj20.org, which was used to organize protests during President Donald Trump’s inauguration. DreamHost has said what the government is asking for includes server logs containing 1.3 million IP addresses of people who visited the site.

Brett Dunst, vice president of corporate communications for DreamHost, said in an email Friday morning that the company launched the CrowdJustice campaign not because it needs the money, but “to give an outlet to those who may be as disturbed about the government’s request as we are.” It’s the first time the company has used a crowdfunding site to cover costs for litigation, Dunst added.

According to DreamHost’s crowdfunding site, any unused dollars that are raised will be donated to the Electronic Frontier Foundation, a civil liberties group that “has been an ally and a supportive professional resource for DreamHost throughout this challenge.”

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Source: Law Journal

The Executive Exodus From Trump Councils, Industry Keeps Up Pressure on CFPB Prepaid Card Rule: Regulatory Wrap

Between January and June, Total System Services shelled out more than $1 million lobbying a host of regulatory matters—namely a push on Capitol Hill to repeal a new Consumer Financial Protection Bureau rule extending credit card-like protections to the fast-growing market for reloadable prepaid cards.

For Total System Services—the Georgia-based parent company of Netspend, a leading prepaid card provider—the lobbying funds paled in comparison to what stood to be lost. In October, weeks after the CFPB finalized its rule, Total System Services’ chief executive projected the company would lose between $80 million and $85 million in overdraft and other fee revenue thanks to a provision in the new regulation requiring companies to check the consumers’ creditworthiness before allowing them to overdraw their accounts.

The push to repeal the prepaid card rule under the Congressional Review Act—a legislative tool Republicans have used more than a dozen times this year to scrap Obama-era regulations—never gained traction. But that has not stopped Netspend from continuing to try to stave off the rule.

In a comment letter earlier this month, Netspend urged the CFPB to delay the rule’s effective date to April 2019. The CFPB previously delayed the rule from October of this year to April 2018, but Netspend said it needs additional time to “implement the changes required by the rule in a very deliberative and careful manner.”

Netspend’s proposed extension mirrored American Express’ suggestion of a further delay of one year. PayPal proposed a six-month extension beyond the current April 2018 effective date.

The proposals to further delay the rule have aroused concern in the consumer advocacy community. With the CFPB’s director, Richard Cordray, widely expected to enter the Ohio governor’s race early next month, some groups are wondering whether a further delay could buy the next leader of the bureau time to revise the rule in a more industry-friendly fashion.

“We think industry has had a long time to implement this rule,” said Lauren Saunders, associate director of the National Consumer Law Center.

“We’ve got to worry about anything that delays people getting the protection they need now,” she added. “You have to worry about what’s coming next.

“Should I stay or should I go?” It’s a famous song lyric that was certainly on the minds—at least in some form— of corporate executives this week mulling whether to leave White House advisory panels in response to President Donald Trump’s comments on the violence in Charlottesville. The panels disbanded after executives pulled out in protest, but some—including the former head of Boeing—made the case for staying put. [New York Times]

Meanwhile, one planned panel never got off the ground. Infrastructure is all about moving things forward, but Trump’s planned infrastructure advisory panel won’t be rolling ahead. The White House pulled the plug on the council, acknowledging that proposed members would likely come under pressure to distance themselves from the president. [Wall Street Journal]

But the tech industry hasn’t totally abandoned Trump. Many remember seeing the heads of Apple, Microsoft and Amazon sitting beside Trump at the first meeting of the American Technology Council. Those tech titans won’t be leaving the council since they were technically never members. But they’re growing increasingly wary. [Recode]

The Uber CEO’s legal trouble is getting personal. Firing back against an investor lawsuit, Travis Kalanick said the fraud accusations are meant to exploit him while he mourns the death of his mother, who was killed in a boating accident that also seriously injured Kalanick’s father. [Axios]

So long “Operation Choke Point.” Attorney General Jeff Sessions’ Justice Department has cut the cord on the controversial program, which was meant to discourage banks from doing business with companies such as payday lenders and gun retailers. [Politico]

AT&T and Time Warner are closing in on their blockbuster merger deal, which Trump criticized as a presidential candidate. The two companies are discussing merger conditions with the Justice Department, a sign the deal has moved into an advanced state. [Wall Street Journal]

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Kalanick Moves to Force Benchmark's Case Seeking Board Ouster to Arbitration

Travis Kalanick, the former CEO of Uber Technologies Inc., pushed back late Thursday against an investor’s attempt to force him off the ride-hailing company’s board, saying that a dispute over his control of three board seats must be settled in arbitration.

Kalanick’s move, outlined in a 15-page court filing, seeks to strip Delaware’s Court of Chancery of its jurisdiction over Benchmark Capital Partners’ fraud suit and move what Kalanick called a “public and personal” attack into a confidential setting.

The venture capital firm has accused Kalanick of hiding a series of scandals in order to expand Uber’s eight-member board to 11, in an effort to entrench himself after resigning as CEO in June. Kalanick appointed himself to one of the three seats and has the ability to fill the other two.

Last week, Benchmark, which holds one seat on Uber’s board, moved to expedite the case and asked Vice Chancellor Sam Glasscock III to issue a status quo order that would drastically scale back Kalanick’s voting rights and prevent him from filling the two board seats while Uber searches for a new CEO.

Kalanick plans to move for dismissal, arguing in his response to Benchmark’s lawsuit that the company’s voting agreement contains a broad arbitration provision, which includes Benchmark’s claims and leaves to an arbitrator, and not the court, the question of whether the dispute is suitable for arbitration.

“Benchmark’s claims are subject to mandatory arbitration, and consequently this court lacks subject matter jurisdiction to resolve them,” Kalanick’s attorneys from Williams & Connolly and Potter Anderson & Corroon said in the filing. “Because Kalanick’s motion to dismiss goes to the jurisdiction of the court, it must be resolved before the court enters any scheduling order governing litigation of Benchmark’s claims, permits discovery or grants and relief against Kalanick.”

A spokesman for Kalanick said that he had no comment beyond the filing, and an Uber spokeswoman did not respond Friday to a request for comment.

Benchmark could not immediately be reached for comment on Friday.

Kalanick said that Benchmark and other investors approached him with a resignation letter at a Chicago hotel on June 20, weeks after Kalanick took a leave of absence following the death of his mother. According to Kalanick, Benchmark threatening a public smear campaign if he refused to sign, but at the time did not challenge his right to fill the two board seats.

Benchmark, however, contends that Kalanick agreed to give up the three board seats under his control when he resigned but later refused to follow through with the changes.

Kalanick said in the filing that he received no compensation for any of the statements in the letter, which was not signed by any other party to the company’s voting agreement. He also refuted Benchmark’s position that his role with the company “threatens the sound management” of Uber, saying that the six board members not tied up in the litigation were “disappointed” in the lawsuit.

The lawsuit comes on the heels of a monthslong probe into Uber’s corporate culture after widespread claims of sexual harassment and discrimination became public. Uber is also defending a lawsuit over allegedly stolen trade secrets, and the company faces allegations that some of its top executives had tampered with the medical records of a woman who said she was raped by her Uber driver in India.

Both Kalanick and Benchmark have told Glasscock that they want the dispute resolved quickly, though the sides disagree on the order in which their motions should be handled.

Glasscock has told the parties that he wants to hear the competing motions to expedite and to dismiss the case “promptly” and at the same time. Benchmark and Kalanick have not yet agreed to a schedule, but court papers indicate the sides could brief the issues by the end of next week.

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Ford Motor Will Do More Than Just Pay Up In Harassment Settlement

ford logo
ford logo


Ford Motor Co. has agreed to pay more than $10.1 million to settle claims that workers at two Chicago manufacturing facilities were harassed for their sex and race, and has also agreed to implement new policies to prevent such behavior in the future, following an investigation by the U.S. Equal Employment Opportunity Commission.

The agency said that it found that female and African-American workers at two Ford facilities in the Chicago area — the Chicago Assembly Plant and the Chicago Stamping Plant — had been harassed and then retaliated against by the company for reporting harassment.

Ford voluntarily resolved the issue with the EEOC and did not admit liability as part of the agreement. But the company will take steps to improve its employment practices, in addition to paying the hefty settlement.

The company agreed that over the next five years, it would conduct regular training at the two plants and continue to promote anti-harassment and anti-discrimination policies and procedures to employees and new hires. The company also agreed to monitor its workforce for issues of alleged sexual or racial harassment and discrimination and to report to the commission about such complaints.

“Ford Motor Co. has worked with the EEOC to address complaints of harassment and discrimination at these two facilities and to implement policies and procedures that will effectively prevent future harassment or provide prompt action when harassment complaints arise,” said the EEOC’s Chicago district director Julianne Bowman in a statement. “Ford has taken its responsibilities seriously and is committed to providing its employees with a work environment free of discrimination and harassment.”

In a statement provided to media, Ford said it “does not tolerate harassment or discrimination of any kind; we are fully committed to a zero-tolerance, harassment-free work environment at all facilities and to ensuring that Ford’s work environment is consistent with our policies in that regard.”

The company added that it conducted a thorough investigation and took appropriate action regarding those who violated its anti-harassment policy.

The Ford facilities in Chicago were previously the subject of sexual harassment claims that resulted in a $9 million settlement, according to reports.

This case is just the latest discrimination suit the EEOC has settled in recent months with a big-name company. A few weeks ago, the commission inked a $10.5 million settlement with Bass Pro Outdoor World that included an agreement to hire a more diverse workforce.

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Source: Law Journal

Real Fake News: Washington, D.C.'s Unpredicted Solar Eclipse

It was 1980 and I had recently concluded a representation of legendary filmmaker Dino De Laurentiis. The telephone rang in my K Street office in Washington, D.C.

It was Dino calling from London. “Richard, I’m shooting a picture in London and need your help right away,” he said in his heavily Italian accented English. “Uh, oh,” I thought. “What do I know about British criminal law?”

But he didn’t need a lawyer. “I’m shooting a picture—Flash Gordon—and I need somebody to play a TV reporter to do a stand-up in front of the White House,” Dino said. “Can you do this for me? Just a few lines, easy. I can have a crew there tomorrow night. Wear a suit, like you were on TV. Can you help me out?”

Of the dozen questions flitting through my mind, I seized on “night.”

“Why night, Dino? Why are you shooting at night?”

“It’s because it’s a total eclipse of the sun—so we shoot it at night. Simple. We get you the script in the morning and we shoot it at night. Okay?”

“Okay, Dino. I’ll do it.” In truth, I never for a second considered that I wouldn’t do it. De Laurentiis’s low-tech solution to filming the report of an unpredicted solar eclipse in front of the Pennsylvania Avenue entrance to the White House turned out to be a piece of cake. I quickly memorized the few lines of script that arrived as promised, met the crew and filmed the scene without a hitch. In fact, once we had a couple of satisfactory takes “in the can,” I had the opportunity to improvise and have a little fun with my famous client.

In the script, the eclipse was the work of Ming the Merciless—the evil ruler of the planet Mongo— played by the terrific Max Von Sydow, who delighted in finding creative ways to torture earthlings. “Okay, Dino, now I give you a take you can’t refuse,” I intoned in my best Godfather imitation. I proceeded to expand my role of newsreader into that of investigative reporter—looking earnestly into the camera and promising to appear again “later in this movie, when I will get to the bottom of what’s going on.”

Richard Ben-Veniste
Richard Ben-Veniste

De Laurentiis never said if he was amused by my embellishments. But he liked my scripted performance well enough to fly me to the movie set at Shepperton Studios, where the final scenes were being filmed. There, I got to meet some of my co-stars, including Topol, Ornella Muti, Timothy Dalton and Brian Blessed. What a hoot!

When the film was released, I was invited to see my acting debut on the big screen—about 30 seconds worth. However, no matter how big the big screen, my appearance was limited to a tiny television set in Dr. Hans Zarkov’s laboratory, from which these timeless words emanated:

There seems to be no reason for these intergalactic upsets. Only Hans Zarkov, formerly of NASA, provided an explanation. His ideas, however, have been rejected as irrational. According to NASA, today’s solar eclipse is no cause for alarm. A team of scientists has been in conference with the President.

Unfortunately, my appearance went unmentioned in the film credits, as I had declined the invitation to join the Screen Actors Guild and pay the $500 initiation charge. C’est la vie. The rest, of course, as they say in Tinseltown, is history. Flash Gordon went on to become a cult classic, with Max Von Sydow stealing the show. The Flash Gordon and Dale Arden characters, not so much.

But wait! There’s more.

Unbeknownst to me at the time, De Laurentiis had hired the iconic rock group Queen to compose, perform and produce the soundtrack for the film. Not surprisingly, the recording, released by EMI—and, particularly the title song, Flash—became a smash hit. The real surprise was that for some ungodly reason they lifted some of the movie dialogue as background for Flash, including parts of my report of the solar eclipse: “Dr. Hans Zarkov, formerly of NASA”; and “no cause for alarm” can be distinctly heard.

This, in turn—quite correctly in my view—caused EMI to include me along with Freddy Mercury and the band among the recipients of a gold record, which I have modestly displayed in my law office to this day.

This was particularly hilarious for my two daughters, since it is well known that I am tone deaf and can’t sing a note. Indeed, when each of them were infants, defenseless and incarcerated in their cribs at bedtime, the tiny darlings begged me not to sing to them. In grade school at PS 156, the music teacher instructed me to “mouth the words.”

Yet, I’m the one with a gold record.

As I say, c’est la vie.

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Source: Law Journal