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Calif. Chief Justice Defends Letter Assailing Trump's Immigration Arrests

Kruger-Cuellar-Ceremony-Article-201705251826 Calif. Chief Justice Defends Letter Assailing Trump's Immigration Arrests 197

SACRAMENTO—California Chief Justice Tani Cantil-Sakauye said the state Supreme Court chambers were flooded with calls from “profane and very angry people” after she asked federal officials in March to stop arresting undocumented immigrants in state courthouses.

“And I received a lot of letters that said, ‘This is not your job … You shouldn’t be involved in politics. You’re just a judge who should interpret the law.’” Tani Cantil-Sakauye said Thursday in remarks at the Sacramento Press Club.

The chief justice’s letter to U.S. Attorney General Jeff Sessions and U.S. Homeland Security John Kelly accused federal agents of “stalking undocumented immigrants in our courthouses” and instilling fear in people who are summoned to court. Sessions and Kelly responded with their own letter two weeks later, criticizing Cantil-Sakauye’s use of the word “stalking” and insisting that the courthouse arrests would continue because state leaders had blocked immigration agents’ work in other locations, including prisons and jails.

The chief justice said she expected the criticism but wanted to put courthouses “on par” with schools, churches and other places that U.S. Immigration and Customs Enforcement agents avoid.

“If I couldn’t speak out as chief justice, I don’t know who could,” she said.

Cantil-Sakauye’s question-and-answer session Thursday was the latest in a series of public appearances she’s made around the state as the governor and legislative leaders consider her branch’s request for more funding. The governor’s latest budget proposal offered little additional funding for the judiciary, even as Cantil-Sakauye and others have pleaded for at least another $159 million to keep up with the courts’ workload.

The chief justice said she has a good relationship with Gov. Jerry Brown, one that results in “robust and raucous” conversations surrounding the courts and the budget.

“He says things to me like, ‘You know, poor people have more influence than you. You don’t have any lobbies really in the Capitol,’” Cantil-Sakauye said.

That frank relationship hasn’t resulted in more money for the courts, she acknowledged.

“But it’s always personable and for that I’m grateful,” Cantil-Sakauye said.

Copyright The Recorder. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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Source: Law Journal

California Chief Justice Defends Letter Assailing Trump's Immigration Arrests

Kruger-Cuellar-Ceremony-Article-201705251826 California Chief Justice Defends Letter Assailing Trump's Immigration Arrests 197
Chief Justice, Tani Cantil-Sakauye California Supreme Court

Jason Doiy / The Recorder

SACRAMENTO—California Chief Justice Tani Cantil-Sakauye said the state Supreme Court chambers were flooded with calls from “profane and very angry people” after she asked federal officials in March to stop arresting undocumented immigrants in state courthouses.

“And I received a lot of letters that said, ‘This is not your job … You shouldn’t be involved in politics. You’re just a judge who should interpret the law.’” Tani Cantil-Sakauye said Thursday in remarks at the Sacramento Press Club.

The chief justice’s letter to U.S. Attorney General Jeff Sessions and Homeland Security John Kelly accused federal agents of “stalking undocumented immigrants in our courthouses” and instilling fear in people who are summoned to court. Sessions and Kelly responded with their own letter two weeks later, criticizing Cantil-Sakauye’s use of the word “stalking” and insisting that the courthouses arrests would continue because state leaders had blocked immigration agents’ work in other locations, including prisons and jails.

The chief justice said she expected the criticism but wanted to put courthouses “on par” with schools churches and other places that U.S. Immigration and Customs Enforcement agents avoid.

“If I couldn’t speak out as chief justice, I don’t know who could,” she said.

Cantil-Sakauye’s question-and-answer session Thursday was the latest in a series of public appearances she’s made around the state as the governor and legislative leaders consider her branch’s request for more funding. The governor’s latest budget proposal offered little additional funding for the judiciary, even as Cantil-Sakauye and others have pleaded for at least another $159 million to keep up with courts’ workload.

The chief justice said she has a good relationship with Gov. Jerry Brown, one that results in “robust and raucous” conversations surrounding the courts and the budget.

“He says things to me like, ‘You know, poor people have more influence than you. You don’t have any lobbies really in the Capitol,’” Cantil-Sakauye said.

That frank relationship hasn’t resulted in more money for the courts, she acknowledged.

“But it’s always personable and for that I’m grateful,” Cantil-Sakauye said.

Copyright The Recorder. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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Source: Law Journal

When Michelle Wanted Barack to Be a SCOTUS Law Clerk

Barack-Obama-Article-201705251647 When Michelle Wanted Barack to Be a SCOTUS Law Clerk 197

The day after Barack Obama became the first African-American president of the Harvard Law Review in 1990, he took a phone call from Sheryll Cashin, then a law clerk to Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit.

Mikva by then was a “feeder judge” for Supreme Court law clerks, and Cashin told Obama that Mikva was “very interested in you,” according to a new biography of Obama’s life before becoming president in 2009.

Obama’s response was quick and surprising, according to the book “Rising Star: The Making of Barack Obama” by historian David Garrow, also a Supreme Court expert. “I’m flattered, but no thanks. I’m going back to Chicago,” Obama told Cashin, now a professor at Georgetown University Law Center. “I was floored,” she said. Then, as now, a path to a Supreme Court clerkship was almost a default career plan for top-tier law students at Harvard.

Michelle Robinson, Obama’s future wife, was also surprised when he called her that day. “You’re not going to clerk for them? You’re kidding me,” the book quotes her as saying. “He’s like, ‘No, that’s not why I went to law school. If you’re going to make change, you’re not going to do it as a Supreme Court clerk.’”

The three current senators and four current justices who were once Supreme Court law clerks might disagree with Obama on that point. And it’s difficult to guess what Obama would be doing now if he had pursued the path not taken—would he be a Big Law rainmaker, senator, justice, a law school professor, or something entirely different? It is clear Obama’s answer to Cashin was a pivotal moment in his life and career.

The story of Obama’s rejection of the clerkship path has been told before. In the late 1990s when this reporter wrote about the dearth of minority law clerks at the Supreme Court, appellate judges talked about the African-American Harvard Law graduate who was a hot prospect but “got away.” It was Obama.

But Garrow’s book offers new details about the decision, including Michelle Obama’s reaction, and some possible explanations about why Barack Obama was so disdainful of the clerkship route.

When Obama headed the Harvard Law Review, he sent a copy along with his cover letter to Justice William Brennan Jr., first revealed in Garrow’s book. He told Brennan that a 1987 NPR interview of the justice by Nina Totenberg helped inspire him to become a lawyer. “I recall harboring considerable doubts,” Obama said. “I felt concerned that too often the law served the interest of the powerful and not the powerless. In the midst of my internal debate, I was fortunate enough to hear your interview.”

The Garrow book also offers several samples of Obama’s belief that political change, not judicial decisions, would make the most difference in improving race relations and helping the poor. Obama, along with fellow student Rob Fisher, wrote a lengthy paper for Harvard professor Martha Minow that criticized the belief that “the judiciary is the principal arena for social change.” They agreed that “the energy for change in race relations in in America will come from a bolder political vision … rather than a bolder legal theory.”

Following that view after graduating from Harvard in 1991, Obama worked at a Chicago civil rights firm, taught at the University of Chicago Law School, and then headed a get-out-the vote project. He was elected to the Illinois state Senate in 1996, beginning his climb in electoral politics that led him to the White House.

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Source: Law Journal

4th Circuit Uses Trump's Comments in Blocking Travel Ban

Immigration-Ban-Protest-SCOTUS-Article-201703281642 4th Circuit Uses Trump's Comments in Blocking Travel Ban 197

The U.S. Court of Appeals for the Fourth Circuit is the first appellate court to uphold an injunction against President Donald Trump’s revised travel ban executive order, a move that likely sets the issue up for an appeal to the U.S. Supreme Court.

Thursday’s opinion keeps in place a Maryland district court’s nationwide injunction against the order, issued March 6. The executive order blocked the entry of immigrants from six majority-Muslim countries.  

“Congress granted the president broad power to deny entry to aliens, but that power is not absolute,” Judge Roger Gregory wrote. “It cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

The Fourth Circuit heard the case en banc earlier this month, meaning the government’s only recourse is to appeal to the Supreme Court. Trump has indicated he would appeal, though a similar challenge is pending in the Ninth Circuit. That court heard arguments a week after the Fourth Circuit, and a ruling is pending.

Today’s 10-3 ruling was fractured. Judges Diana Motz, Robert King, James Wynn, Albert Diaz, Henry Floyd and Pamela Harris joined in Gregory’s opinion. Judges William Traxler, Barbara Keenan, Stephanie Thacker and Wynn wrote concurring opinions. Three of the more conservative judges, Paul Niemeyer, Dennis Shedd and G. Steven Agee, each wrote dissenting opinions but joined in each others’ dissents.

Central to the case was whether the court should consider Trump’s public comments calling for a complete ban on Muslims entering the country as evidence that his order discriminated based on religion. The government argued the order itself was neutral on its face, and that the court should not consider what Trump said as a presidential candidate.  

“The government has repeatedly asked this court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers,” the opinion said. “We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.”

In his dissent, Niemeyer, a President George H.W. Bush appointee, wrote that the lower court “seriously erred” in considering Trump’s campaign statements, and in refusing to apply the correct Supreme Court precedent.

“The district court’s approach is not only unprecedented, it is totally unworkable and inappropriate under any standard of analysis,” Niemeyer wrote.

The majority opinion did not reach the statutory questions presented under the Immigration and Nationality Act, and instead focused on the establishment clause claims since those were the basis of the lower court’s injunction.

The case was brought by several refugee assistant groups, who were represented by a team of lawyers from the American Civil Liberties Union and the National Immigration Law Center.

Cogan Schneier covers litigation in Washington, D.C., for the National Law Journal and Law.com. Contact her at cshneier@alm.com. On Twitter: @CoganSchneier.

Copyright The National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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DOJ Will Assist UK Agencies Pursuing Corruption, Fraud

In a first for the U.S. Department of Justice, the agency is sending an anti-corruption prosecutor to work in a U.K. agency on white-collar crime.

Acting principal deputy assistant attorney general Trevor McFadden, in remarks prepared for a May 24 speech in Brazil, said as part of Justice’s growing cooperation with foreign prosecutors.

The secondment includes one year at the U.K.’s Financial Conduct Authority and one year at its Serious Fraud Office.

“While on assignment in the U.K., our prosecutor will collaborate on financial fraud and foreign bribery cases with the relevant U.K. authorities. The cross-border nature of many financial frauds has increased the need for international cooperation and coordination among regulators and prosecutors,” he said.

Trevor-McFadden-Vert-201705251552 DOJ Will Assist UK Agencies Pursuing Corruption, Fraud 197
Trevor McFadden, Acting Principal Deputy Assistant Attorney General with the U.S. Department of Justice Criminal Division.
Courtesy photo

The location of McFadden’s speech, in Sao Paulo was fitting. The country is home to one of the world’s largest corruption probes, which is still growing after the conviction last year of global construction firm Odebrecht S.A. The expanding probe has embroiled companies and politicians in 12 countries.

Even as McFadden spoke, tens of thousands of protesters in Brasilia, the country’s capital, set fire to buildings and clashed with police as they called for the resignation of Brazil’s President Michel Temer over allegations that he was involved in the scandal. McFadden said he had met with several of his Brazilian counterparts in Brasilia earlier in the week.

McFadden did not mention Odebrecht directly in his speech. Instead he highlighted the significant increase in cooperation among countries investigating corruption, including Brazil.

“Increasingly, prosecutors around the world understand that investigating and prosecuting transnational crime necessitates transnational cooperation,” he said.

Among other things, he said in the past five years the DOJ has seen:

► A 147 percent rise in the number of annual requests seeking U.S.- based evidence to support foreign bribery and corruption investigations.

► A 75 percent increase in requests from the United States to foreign partners seeking evidence to support U.S. corruption investigations.

► And a 28 percent increase in the number of annual requests from foreign countries for legal assistance.

To handle this growth, McFadden said the DOJ has expanded its Office of International Affairs and established two units to execute incoming requests—the cyber unit, dealing with electronic evidence, and the mutual legal assistance unit, which assists in gathering all nonelectronic evidence.

The FBI, he said, also has set up a group dedicated to executing foreign requests made to the Office of International Affairs.

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Source: Law Journal

4th Circuit Uses Trump’s Comments in Blocking Travel Ban

Immigration-Ban-Protest-SCOTUS-Article-201703281642 4th Circuit Uses Trump’s Comments in Blocking Travel Ban 197

The U.S. Court of Appeals for the Fourth Circuit is the first appellate court to uphold an injunction against President Donald Trump’s revised travel ban executive order, a move that likely sets the issue up for an appeal to the U.S. Supreme Court.

Thursday’s opinion keeps in place a Maryland district court’s nationwide injunction against the order, issued March 6. The executive order blocked the entry of immigrants from six majority-Muslim countries.  

“Congress granted the president broad power to deny entry to aliens, but that power is not absolute,” Judge Roger Gregory wrote. “It cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

The Fourth Circuit heard the case en banc earlier this month, meaning the government’s only recourse is to appeal to the Supreme Court. Trump has indicated he would appeal, though a similar challenge is pending in the Ninth Circuit. That court heard arguments a week after the Fourth Circuit, and a ruling is pending.

Today’s 10-3 ruling was fractured. Judges Diana Motz, Robert King, James Wynn, Albert Diaz, Henry Floyd and Pamela Harris joined in Gregory’s opinion. Judges William Traxler, Barbara Keenan, Stephanie Thacker and Wynn wrote concurring opinions. Three of the more conservative judges, Paul Niemeyer, Dennis Shedd and G. Steven Agee, each wrote dissenting opinions but joined in each others’ dissents.

Central to the case was whether the court should consider Trump’s public comments calling for a complete ban on Muslims entering the country as evidence that his order discriminated based on religion. The government argued the order itself was neutral on its face, and that the court should not consider what Trump said as a presidential candidate.  

“The government has repeatedly asked this court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers,” the opinion said. “We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.”

In his dissent, Niemeyer, a President George H.W. Bush appointee, wrote that the lower court “seriously erred” in considering Trump’s campaign statements, and in refusing to apply the correct Supreme Court precedent.

“The district court’s approach is not only unprecedented, it is totally unworkable and inappropriate under any standard of analysis,” Niemeyer wrote.

The majority opinion did not reach the statutory questions presented under the Immigration and Nationality Act, and instead focused on the establishment clause claims since those were the basis of the lower court’s injunction.

The case was brought by several refugee assistant groups, who were represented by a team of lawyers from the American Civil Liberties Union and the National Immigration Law Center.

Cogan Schneier covers litigation in Washington, D.C., for the National Law Journal and Law.com. Contact her at cshneier@alm.com. On Twitter: @CoganSchneier.

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An Employee Spoke Out on Glassdoor.com, and Now the EEOC Is Suing His Company

Glassdoor-Article-201705251512 An Employee Spoke Out on Glassdoor.com, and Now the EEOC Is Suing His Company 197

Not long after Adrian Scott Duane posted a comment on Glassdoor.com that said his company’s managers “do not know what the word ‘discrimination’ means, nor do they think it matters,” the 32-year-old transgender worker’s desk had been cleared and he was fired from a Silicon Valley-based education technology company.

The U.S. Equal Employment Opportunity Commission on Wednesday filed suit in California against IXL Learning Inc. on behalf of Duane claiming the company violated federal law and that the dismissal was retaliation for the comments Duane posted on Glassdoor, the job recruiting website.

“While the platforms for employees to speak out against discrimination are evolving with technology, the laws against retaliation remain constant,” said EEOC trial attorney Ami Sanghvi. “The main reason to litigate is to send a strong message that we will protect workers that engage in activities, not just through traditional avenues.”

The case may serve as the latest example showing how companies and courts are grappling with protections for employees as technology platforms evolve.

“I would expect to see an uptick in these cases given the way workers communicate are changing,” Sanghvi told The National Law Journal. “The way employees communicate internally and externally and the way people organize is changing. The platforms they are using to speak out change every day. But the law remains the same.”

Duane filed a civil lawsuit in a California federal court against IXL earlier this year. A judge’s ruling on May 12 on procedural issues has kept the case pending. Previously, a San Francisco-based National Labor Relations Board judge sided with the company in the case. The claims there, mirroring those in the EEOC’s suit, were dismissed.

Jeff Wilson of Young, Basile, Hanlon & MacFarlane, who represents  IXL, called the EEOC lawsuit, filed in the Northern District of California, “a disappointing overreach by a federal agency based upon disproven allegations.”

The dispute began in 2014. Duane, who had worked for the company since 2013, had a conflict with his supervisor over the ability to work flexible hours after he returned from having a phalloplasty surgery, a female to male reassignment procedure, and claims he was discriminated against by his colleagues and management for his identity on multiple occasions.

Duane posted a comment Glassdoor.com in December 2014 after he said his supervisor refused to accommodate a scheduling request. Duane’s anonymous review said in part: “If you’re not a family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softball—then you’re likely to find yourself on the outside … Most management do not know what the word ‘discrimination’ means, nor do they seem to think it matters.”

According to court documents, Paul Mishkin, the company’s chief executive officer, confronted Duane with a print-out of the Glassdoor review during a meeting about his complaints about discrimination. Mishkin then terminated him, saying the post showed poor judgement and ethical values. Security had already cleared out his desk and personal effects.

The EEOC alleged IXL violated the Civil Rights Act of 1964 and the Americans with Disabilities Act, which say it is illegal for an employer to fire an employee for opposing discrimination, even when that activity is public. The EEOC’s lawsuit seeks lost wages, compensatory and punitive damages and injunctive relief designed to prevent such discrimination in the future.

IXL CEO Paul Mishkin said in a statement that it has already been determined that Duane did not experience discrimination at the company as a result of his gender identity. He said neither he nor Duane’s managers were aware he was transgender and his identity was not a factor in his termination. He added that he was granted requests for time off or modified work schedules.

“I abhor the particularly overt and cruel marginalization that transgendered people face in society, and I strive, to the best of my ability, to ensure that IXL is a company that welcomes all individuals equally regardless of gender identity,” Mishkin said.

The National Labor Relations Board previously took up Duane’s claims. Administrative Law Judge Gerald  M. Etchingham called Duane’s post on Glassdoor.com “a tantrum” and “childish ridicule” of his employer. The judge said the claim of discrimination was unsupported and he did not believe the post was meant to be part of a concerted or group action among his fellow employees at the company.

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Source: Law Journal

DC Circuit Shows No Sign of Punting on CFPB's Constitutionality

Olson-Ted-CFPB-Hearing-Article-201705230953 DC Circuit Shows No Sign of Punting on CFPB's Constitutionality 197

When the full U.S. Court of Appeals for the D.C. Circuit agreed earlier this year to consider the Consumer Financial Protection Bureau’s constitutionality, it teed up the possibility of punting on that question and instead ruling on narrower grounds.

But the 11-judge panel that heard the case Wednesday appeared poised to take on the issue of whether the CFPB’s independent, single-director structure runs afoul of the Constitution.

The judges, sitting in the court’s ceremonial courtroom, focused squarely on the question of whether it was lawful, under the separation of powers clause, to restrict the president’s power to remove the director “for cause” only. Cabinet secretaries can be dismissed for any reason.

Several judges appeared skeptical that they could strike down that structure, citing a 1935 case—Humphrey’s Executor v. United States—in which the Supreme Court said a member of the Federal Trade Commission could not be fired at will by the president.

The arguments marked a pivotal point in mortgage provider PHH Corp.’s challenge to the CFPB. New Jersey-based PHH, represented by Gibson, Dunn & Crutcher partner Theodore Olson, prevailed before a divided three-judge panel that struck down the bureau’s structure last year. But that split decision, authored by Judge Brett Kavanaugh, was later vacated by the D.C. Circuit’s decision in February to grant an en banc review. The company is fighting a $109 million penalty—and many companies are riding on PHH’s argument against the agency.

Olson sought to distinguish the CFPB from the FTC and other five-member commissions. He argued that the CFPB’s power is “all vested in one person as opposed to being distributed among several people,” and later, he described the agency’s director as “completely independent of the president and completely unaccountable to the president.”

What follows are highlights from the 90-minute hearing.

The D.C. Circuit will likely hit the constitutional question. No punting there.

In the October panel decision, the three judges were united in overturning the CFPB’s interpretation of the Real Estate Settlement Procedures Act, the statute at the foundation of the agency’s enforcement action against PHH. But Judge Karen LeCraft Henderson, in a dissent, said the court should not have reached the constitutional question about the CFPB’s structure.

The full D.C. Circuit asked in February for arguments on three questions, among them: “May the court appropriately avoid deciding that constitutional question given the panel’s ruling on the statutory issues in this case?”

There was no talk of taking that off-ramp on Wednesday, a suggestion the court is prepared to confront the constitutionality of the single-director structure head-on.

Some judges were skeptical the CFPB’s structure intruded at all on presidential power.

Judge Patricia Millett appeared unconvinced that the CFPB’s structure encroached executive power any more than an independent commission. She noted that no more than three commissioners at five-member agencies—such as the FTC and the U.S. Securities and Exchange Commission—can be from the same party, forcing the president to occasionally appoint members from the opposite political party. With the CFPB, the president does not face any such restriction, she said.

Posing the question of which was the “greater intrusion,“ Millett asked whether it was more limiting for a president to choose “someone of your choice for the bureau or someone of the other party for the commission?”

Kavanaugh had his eye on future directors of the CFPB.

Kavanaugh was struck at one point by how turnover for CFPB director would play out in the future.

The five-year term of the CFPB’s current director, Richard Cordray, expires in July 2018. Kavanaugh envisioned a presidential candidate running on a consumer protection platform and winning the White House in 2020 would have to wait three years before the five-year term of Trump’s appointee—he hasn’t named one—expires in 2023.

That would be a “bizarre situation,” Kavanaugh remarked.

Kavanaugh raised the possibility that the president at that point “might be the person who created the agency”—an apparent reference to U.S. Sen. Elizabeth Warren of Massachusetts. The judge’s line drew laughter.

What if Cordray stays past the July 2018 expiration of his term?

There was some talk at the hearing about what power Trump would have—if no nominee is pending—to remove Cordray after July 2018, when his term expires.

Olson said Cordray conceivably could stay at the agency past that date until his successor is confirmed by the Senate. That’s not an uncommon practice at federal agencies.

Kavanaugh asked CFPB attorney Lawrence Demille-Wagman whether Trump would be able to fire Cordray in any such holdover period. Demille-Wagman said Cordray would lose his “for cause” protection after his term expires.

Here are some quick-take reactions from two former CFPB lawyers.

Deepak Gupta, founding principal of Gupta Wessler and former CFPB attorney said he thinks “people who are supporters of the CFPB should be thrilled by today’s arguments.” Gupta said he “counted a solid majority of the D.C. Circuit supporting the constitutionality of the CFPB.”

And from Mayer Brown partner Ori Lev, a former deputy enforcement director at the CFPB: “There was some chatter before the argument about whether they would reach the constitutional issue or not,” said. “It certainly seems like that was what they care about and why they are sitting en banc.”

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A Hard-Hitting Litigator, Kasowitz Goes to Bat for Trump

Marc-Kasowitz-Article-201705241834 A Hard-Hitting Litigator, Kasowitz Goes to Bat for Trump 197

It looks like Marc Kasowitz will go down in history as President Donald Trump’s lawyer. But while America is just getting to know him, the same can’t be said for his fellow elite litigators, especially in New York.

Now reportedly poised to lead the president’s outside legal team amid expanding Russia investigations, Kasowitz has long had a reputation as a hard-nosed trial lawyer, with a hands-on approach to running and growing the firm he co-founded in 1993, now known as Kasowitz Benson Torres. (A spokeswoman for Kasowitz’s firm didn’t respond to a request to confirm his assignment or comment on his role.)

Kasowitz has done plenty of work for Trump in the past, including during the 2016 presidential campaign. But much of that involved protecting Trump’s reputation and business interests—a far cry from the white-collar and national security questions likely to plague the president in the months ahead.

Instead, Kasowitz brings to his new role a deep background in financial institution and tobacco litigation, as well as experience leading an Am Law 200 firm that he helped to build from the ground up.

Scrappy Beginnings

Kasowitz spent his early years in New Haven, Connecticut, the son of a scrap metal business owner. A childhood friend told The American Lawyer in 1997 that Kasowitz was “a real scrapper and a real hustler” when he played high school basketball, a side of his personality that stayed with him. Later, while working at Rosenman & Colin and playing on its basketball team, Kasowitz wound up in a fistfight with a member of an opposing team. Kasowitz defended himself, claiming that his foe had provoked him with a kick: “I took all appropriate measures to defend myself until my teammates interceded,” Kasowitz said after the incident, according to the magazine.

Defending Big Tobacco

Kasowitz grew a reputation as a feisty litigator with his representation of cigarette manufacturer Liggett Group Inc. in the mid-1990s. The work for Liggett included hashing out a settlement in the massive tobacco class action Castano v. American Tobacco.

He later ruffled the tobacco industry’s feathers with an aggressive strategy to lead Liggett to additional settlements. Breaking ranks with a joint defense effort, Liggett agreed to turn over business documents to plaintiffs lawyers and state attorneys general, a move that helped save the company millions of dollars, according to a 2004 profile.

Growing His Firm

In the years that followed, Kasowitz continued to represent longstanding clients such as Celanese Corp., which he had brought with him from Mayer Brown when he left to form his own firm with co-founders Daniel Benson, Hector Torres and W. Bruce Hoff Jr. (Hoff left within three years for Altheimer & Gray.)

Long known for keeping close control over his firm, Kasowitz steered it through the recession without the layoffs that hit many other large firms. In recent years, however, the firm has had mixed financial results and has seen its head count shrink, with some prominent partners decamping for rival firms.

Taking on the Banks

In the wake of the recession, Kasowitz was one of just a handful of large firms spearheading litigation against some of powerful banks at the center of the subprime meltdown.

He had a string of success representing insurer MBIA Inc. in financial crisis litigation against the likes of Bank of America Corp., France’s Societe Generale SA and others, which pursued fraud claims after MBIA underwent a $5 billion restructuring in 2009.

Siding With Government

In addition to private litigation tied to the recession, Kasowitz and his firm also represented the government conservator for mortgage finance giants Fannie Mae and Freddie Mac in one of the largest efforts to hold banks financially accountable for the crisis. Those cases, in which Kasowitz represented the Federal Housing and Finance Agency against several of the world’s largest banks, led to a series of settlements and netted his firm some $77 million in fees. (Quinn Emanuel Urquhart & Sullivan handled the bulk of the FHFA cases, which led to a combined $19 billion in settlements.)

Kasowitz also has some intra-government dispute experience in New York state. In 2013, he represented the New York Assembly in fighting subpoenas from the Moreland Commission, a panel appointed by New York Gov. Andrew Cuomo to investigate public corruption. State lawmakers claimed the commission’s subpoenas were unconstitutionally overbroad and designed to harass and intimidate them.

­—Additional reporting by Christine Simmons

Scott Flaherty can be reached at sflaherty@alm.com. On Twitter: @sflaherty18.

Copyright The American Lawyer. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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Counsel for Fox News Seeks Sanctions Against Ex-Show Host's Lawyer

Fox News fired back on Wednesday against the latest lawsuit brought by former show host Andrea Tantaros, filing a motion for sanctions that seeks money, a dismissal of the case and a disciplinary referral for Judd Burstein, Tantaros’ Manhattan-based lawyer.

The 25-page motion, filed with Southern District Judge George Daniels, claims that the basis for Tantaros’ federal complaint filed in April amounts to an “outright hoax.”

“On the very first page of the complaint, Burstein falsely accuses Fox News of engaging in criminal conduct,” writes Andrew Levander, a partner at Dechert serving as outside counsel for Fox and two of its executives.

“This sensational allegation,” Levander continues, “broadcast in bold-faced type, was made solely to generate negative headlines for, and inflict maximum damage on, Fox News. Had Burstein conducted even a minimal factual investigation … he would have immediately known that Tantaros’ allegations were an outright hoax.”

In the motion, Levander summarizes Tantaros’ allegations as involving the hacking of her laptop at Fox’s behest, the tapping of her telephone, and the torturing of her with information surreptitiously gathered by sending her coded messages via a “sock-puppet” Twitter account.

“There are only two possibilities,” Levander writes, “Burstein either knew [the allegations of criminal behavior were false] and filed the complaint maliciously or, if he did not, he failed to fulfill his basic professional obligations under Fed. R. Civ. P. 11 to investigate his client’s claims.”

But later on Wednesday, Burstein struck back at Levander and Fox, arguing in a phone interview that Fox’s sanctions motion was “frivolous” and may ultimately result in sanctions against Levander.

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Judd Burstein

“I will show them in my response to their frivolous motion that they have actually confirmed the allegations of the complaint,” Burstein said, adding that he believes the motion contains “a perjurious declaration from Mr. [Daniel Wayne] Block [a witness involved with the alleged “sock-puppet” Twitter account] and Mr. Levander or his client knew it, and I’m going to seek sanctions.”

“I simply can’t believe that they handed me my case,” said Burstein, a veteran lawyer who runs a small litigation boutique, Judd Burstein P.C. “It’s the worst case of self-immolation I’ve seen in my career.”

The lawsuit that is the subject of Wednesday’s sanctions motion is the second one Tantaros has lodged against Fox and its executives in the last year. In August, shortly after Fox News founder Roger Ailes resigned in the wake of former anchor Gretchen Carlson’s sexual harassment claims, Tantaros filed a sexual harassment and retaliation suit in Manhattan Supreme Court. In it, she labeled Ailes a “sexual predator” and likened the network’s work atmosphere to “a sex-fueled, Playboy Mansion-like cult.”

But by February, Manhattan Supreme Court Justice David Cohen ruled that her claims were covered under an arbitration clause in her employment contract, meaning she cannot file suit. Tantaros is appealing that decision.

In the meantime, she filed a separate federal action against Fox and certain executives that is now before Daniels. She alleges Fox paid a third person to hack into her personal laptop, illegally electronically surveil and “cyber-stalk” her, steal her personal emails and then “use the fruits of the surveillance to emotionally torture her” by sending her coded messages via a hidden “sock-puppet” account belonging to Florida resident Block.

Levander argues in the sanctions motion that had Burstein done the simplest of research, he would have learned that Block was acting on his own.

“The ‘Daniel Wayne Block’ Twitter account does not ‘operate under a fictitious identity’ and does not tweet on anyone else’s behalf,” Levander wrote. “Mr. Block is a real person living in Gainesville, Florida, who maintains the account in his own name. That fact could have been determined in minutes by looking at an online directory.”

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Source: Law Journal