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Google's Top Lawyer Says Digital-Evidence Law Needs 'Fundamental Realignment'

Since the dawn of the digital age, tech companies have grappled with the protection of privacy rights amid demands from foreign and domestic authorities seeking evidence for investigations.

Those competing pressures have meant a tricky balancing act—but Google’s top lawyer has some ideas for making it easier.

Google general counsel Kent Walker, speaking in Washington at the Heritage Foundation on Thursday, laid out what he called a “new framework” that would allow countries that commit to baseline privacy and human rights principles to more easily obtain digital evidence.

To date, Walker said, the flow of data between tech companies and foreign law enforcement has been governed by diplomatic agreements—mutual legal assistance treaties that often mean a government agency will wait many months to receive requested information.

Some countries, frustrated by the long wait for data, have asserted their laws apply to companies outside their borders, putting those companies in the “untenable position” of complying with a data request at the risk of violating the home country’s laws.

“Laws governing digital evidence are due for a fundamental realignment in light of the rapid growth of technology that relies on the cloud, the very real security threat to people and communities, and the expectations of privacy that internet users have in their communications,” Walker said Thursday.

Walker’s remarks come amid a quarrel between the U.S. Justice Department and Microsoft Corp. over the federal government’s demand that the company provide data that is stored on a server in Ireland.

A federal appeals court in January refused to reconsider an earlier ruling that said the requested data remained out of reach from the Justice Department. The panel decision last year was “a major victory for the protection of people’s privacy rights under their own laws rather than the reach of foreign governments,” Microsoft general counsel Brad Smith said then. The Justice Department faces a Friday deadline to file a petition in the U.S. Supreme Court.

Walker said the United States and foreign governments that respect privacy rights should forge alternative agreements to the mutual legal assistance treaties, commonly called MLATs. “Ultimately,” he said, “countries should have the opportunity to gather digital evidence directly from providers in ways that respect human rights and due process.”

“We don’t have to live with a system that not only fails to protect privacy but also impedes legitimate investigations,” Walker added. “We recognize that this will be an involved process. It will require action here in Washington and capitals around the world. However, we shouldn’t accept that the complexity of action is a reason for inaction. The stakes are too high, and the risks are too great.”

Walker endorsed a U.S. Justice Department proposal that would amend the Electronic Communications Privacy Act to authorize U.S. service providers to disclose records to foreign governments that adhere to “baseline due process, human rights, and privacy standards.”

Asked to define those baseline standards, Walker cautioned against being “prescriptive.” But, as examples, he said independent reviews of law enforcement requests and safeguards against overly broad investigations would be features of a country with proper respect for privacy rights.

Walker came out against a proposal in New Zealand that would allow the government to force companies outside of the country to disclose communications content. “We hope the government doesn’t go down that path, but if New Zealand were to issue that kind of legal demand to Google, we’d be put in the position of having to make a choice between U.S. law and New Zealand law,” Walker said. “You can see the untenable position that puts any law-abiding company in.”

Walker similarly voiced his opposition to proposals that would require companies to store data within local borders.

“Let’s be clear, these data localization regulations won’t benefit users in any meaningful respect. When it comes to storing data for consumer services, putting it in one country over another simply doesn’t make it more secure or more private,” he said.

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

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Mueller Bolsters Russia Team's Appellate Readiness in New Hire

Special Counsel Robert Mueller III added another appellate specialist to his legal team that is investigating Russia’s interference with the U.S. presidential election last year.

Adam Jed, a 2008 Harvard Law graduate and former clerk to U.S. Supreme Court Justice John Paul Stevens, joined Mueller on detail from the U.S. Justice Department’s Civil Division, The National Law Journal confirmed on Thursday. Jed, a Justice Department lawyer in Washington since 2010, was not reached for comment.

Mueller, named special counsel in May to lead the Russia probe, is working with 13 lawyers, and a spokesman said that number is expected to grow. A former Wilmer Cutler Pickering Hale and Dorr partner, Mueller recruited Michael Dreeben and Elizabeth Prelogar from the U.S. solicitor general’s office, and Andrew Weissmann from the Criminal Division’s fraud section. Wilmer lawyers Aaron Zebley and James Quarles III left the firm to work with Mueller.

Jed joined the Justice Department through the highly competitive Honors Program. “He is an excellent lawyer” who worked on a wide range of appellate matters in the Civil Division, said Covington & Burling partner Beth Brinkmann, who formerly led the civil appellate staff at Main Justice under Attorney General Eric Holder Jr.

Among those matters were Little Sisters of the Poor v. Sebelius and related challenges to the contraceptive insurance requirement in the Affordable Care Act. In 2014, Jed made the arguments on behalf of the then-secretary of Health and Human Services Department in the U.S. Court of Appeals for the Tenth Circuit. Jed also defended the contraceptive mandate in the D.C. Circuit.

In 2014, Jed, along with a number of other Justice Department attorneys, received the Attorney General’s Award for Exceptional Service for their work on implementing the Supreme Court’s decision in United States v. Windsor, which struck down the definition of marriage as between a man and a woman in the federal Defense of Marriage Act.

Jed in 2015 represented the government before a three-judge panel of the Ninth Circuit in a challenge to the Justice Department’s effort to shut down a large California medical marijuana dispensary. The city of Oakland had sued the department to prevent the closure.

Jed was a 2003 graduate of Yale University, where he was a member of the student debate association. He worked for the International Criminal Tribunal for the former Yugoslavia before attending Harvard Law School, according to the Harvard Crimson. Jed was on the Harvard Law Review staff.

He was a clerk to Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit. Jed’s clerkship with Stevens was in the October 2009 term. During that high court term, Stevens wrote a major dissent in McDonald v. City of Chicago, which applied the Second Amendment to the states, and he authored the majority opinion in American Needle v. National Football League, which held that Section 1 of the Sherman Antitrust Act covered the NFL’s licensing and sale of team products.

Stevens also led the court in Padilla v. Kentucky that term, ruling that criminal defense attorneys must advise noncitizen clients about the deportation risk of pleading guilty.

Earlier, in 2006, Jed  was selected as a Gates Cambridge scholar for graduate work at the University of Cambridge in England. He pursued a master’s degree in modern society and global transformation, according to the Harvard Gazette.

“I’m particularly interested in comparative legal issues, particularly in European law, and the Gates and other scholarships are good ways to open some doors and study in the U.K.,” Jed told the Yale Daily News in February 2006. The news publication said he planned to focus on “European discrimination law and civil rights issues common to Europe and the United States.”

Jed at the time told the Harvard Crimson he planned to study “the imposition of state power on private parties to achieve social goals.” He also said he would focus on “accommodation mandates that accompany anti-discrimination law.”

Robert Loeb, an appellate partner at Orrick, Herrington & Sutcliffe and former acting deputy director of the Civil Division appellate staff, described Jed as “brilliant” and said he was a “strong writer” and “very tenacious.”

Mike Scarcella in Washington contributed to this report.

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Circuit Finds Consumers Bound by Contracts in Robocall Suit

In a split with other circuits, the U.S. Court of Appeals for the Second Circuit ruled Thursday that the federal Telephone Consumer Protection Act does not allow consumers to demand that they stop receiving automated calls if they agreed to provisions opting them in.

Manatt, Phelps & Phillips partner Christine Reilly, who heads the firm’s TCPA compliance and class-action defense practice group, said she believes other circuits are sure to continue to side with consumer-friendly readings of the law that will be in conflict with the Second Circuit’s view.

“This decision is a big win for the defense bar, as it’s basically saying that the consumer does not have the ability in all situations to evoke consent,” Reilly said.

In Reyes v. Lincoln Automotive Financial Services, 16-2104-cv, the panel affirmed summary judgment by Eastern District Judge Leonard Wexler in a suit by a car lessee who demanded to no longer be phoned by the car financing company after defaulting on his lease.

Circuit Judge John Walker Jr., writing for the panel, pointed to the lack of clarity in the TCPA as to “whether a party that has so consented can subsequently revoke that consent.” He noted that two other circuits, the Third in Gager v. Dell Financial Services and Eleventh in Osorio v. State Farm Bank F.S.B., had found that consumers can, in fact, revoke consent, in part, because doing so is allowed under common law, and permitting consumers to do so advanced the purpose of the act.

The decisions underpinned a ruling by the Federal Communications Commission in 2015 that consumers who “freely and unilaterally” gave their consent can revoke it. The panel, on which Walker was joined by Judges Dennis Jacobs and Barrington Parker, found that Reyes presents a different question, not addressed by the FCC, over whether a consumer can revoke consent that was given “not gratuitously, but as bargained-for consideration in a bilateral contract.”

The panel found that Alberto Reyes’ argument, relying largely on the other circuit views on common law and the FCC’s rule, was reading too much into the act and declined to do the same. Relying on contract rather than common law theory, the panel found that Reyes’ consent was not gratuitous, and was, instead, bound to the contract he signed. Absent an agreement by the leasing company to release him of his contractual obligation, Reyes would continue to be subject to those terms, the panel found.

“It is black-letter law that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty,” Walker wrote. Given the absence of “express statutory language” in the TCPA that allows for a changing of the contractual understanding of “consent,” the panel declined to “conclude that Congress intended to alter the common law of contracts in this way,” regardless of how unimportant the provision on receiving calls is to whatever good or service is being agreed to.

Olshan Frome Wolosky partner Scott Shaffer noted in an email that “drafters of leases, credit extensions and similar agreements would be well advised to add a carefully worded provision saying consent is a bargained-for consideration.”

He, like Reilly, said he thinks a U.S. Supreme Court showdown is unlikely at this juncture.

“Since this ruling is based on contract law, the issue of whether a consent can be revoked is a principle that can be determined under state law as easily as federal common law,” he said.

On the other hand, Dorsey & Whitney partner Eric Troutman, who specializes in TCPA defense cases, said he sees potential for “a tremendous impact.”

“Really, it allows industry participants to build in provisions for the right and ability to contact their customers with technology that allows them to do it quickly and efficiently,” he said, acknowledging that the panel decision “does elevate contract over consumer protection in this context.”

He said he expects defense attorneys will bring arguments in district courts around the country citing the decision, and that the issues of different circuit interpretations already present will “quickly percolate.”

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Niche-Market Lawyers Battle Insurers' Disparate Treatment of Mental Health Claims

A federal trial judge has certified a class action filed against Blue Shield of California and Magellan Health Inc. for systematically restricting insurance coverage for mental health and substance abuse treatment.

In her June 15 order, U.S. District Judge Lucy Koh of the Northern District of California granted class certification for anyone whose claims for residential and intensive outpatient mental health and substance abuse treatment were rejected by insurer Blue Shield and health care provider Magellan based on the companies’ “medical necessity criteria guidelines” from Jan. 1, 2012, to the present.

It’s the latest victory in a niche market dominated by a handful of health care plaintiffs lawyers who go after insurers for disparate treatment of behavioral health issues in violation of the federal Employment Retirement Income Security Act, and depending on the case, the Mental Health Parity and Addiction Equity Act of 2008.

This most recent suit alleges that the criteria Blue Shield and Magellan used to restrict coverage for this type of care “are inconsistent with the terms of the relevant insurance plans and generally accepted professional standards in the mental health and substance abuse disorder treatment community.” Neither Blue Shield nor Magellan responded to emailed requests for comment.

Another class action that was certified by a federal judge in Connecticut last month alleges Aetna Inc. systematically denied insurance coverage for transcranial magnetic stimulation to treat severe depression.

Representing the plaintiffs in both cases are Zuckerman Spaeder and Psych-Appeal Inc., a West Hollywood, California, law firm devoted to mental health insurance law. The two firms have successfully collaborated on around six cases of this kind since they teamed up a few years ago. LeClairRyan is co-counsel in the Aetna case, and Grant & Eisenhofer is co-counsel in the Blue Shield and Magellan matter.

Meiram Bendat, president of Psych-Appeal Inc.
Meiram Bendat.

“The cases have been successful because they speak to system abuses that are relatable, and the remedies we are seeking are just intrinsically fair,” said Meiram Bendat, president of Psych-Appeal, who is both a psychotherapist and a lawyer. “They’re requiring the insurers to essentially conform their practices to the proper standard of care.”

Zuckerman partner D. Brian Hufford agreed that much of the success is due, at least in the California case, to what the plaintiffs are asking for.

“We’re not directly saying, ‘You’ve got to reward benefits,'” he explained. “We’re saying: ‘You used the wrong standard or applied the wrong decision and, therefore, you need to go back and use the proper guidelines.’ … This area is complex, but we’ve been able to come up with, after years of development, strong legal theories.”

So where do those years of development start? For Hufford, it began in the 1990s with a personal matter — a son who had a highly unusual skin condition that was difficult to diagnose. An interest in health care law that stemmed from that experience evolved into a specialty many years later, when Hufford, then at Pomerantz Grossman Hufford Dahlstrom & Gross, negotiated a $350 million settlement with UnitedHealth Group Inc. for misusing a eugenics database to set “usual, customary and reasonable” rates for out-of-network health services. The majority of Hufford’s health care work now deals with behavioral health, he said.

Bendat’s story also began with a child. Or lots of them. After representing children and families in the Los Angeles child welfare system and treating patients, Bendat founded Psych-Appeal in 2011. And when he went looking for a health care attorney with class action success to work with him on mental health insurance issues, Hufford’s reputation was well known.

In their first big case together, the U.S. Court of Appeals for the Second Circuit in 2015 held that third-party benefits administrators can be sued under ERISA for violating the Parity Act’s requirement of equal coverage for mental health treatment. Zuckerman partner Jason Cowart, Hufford’s co-counsel in these cases, called it a “watershed case” at the time.

And there’s much more work to be done to advocate for parity in behavioral health benefits, Bendat said.

“To date, there’s been very little enforcement of both the parity and mental health access protection in large part due to a lack of prioritization and sophistication on the part of regulators,” he said. “But we have been able to detect and unravel the systemic abuses that have haunted and plagued the industry for so long.”

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Trial Date Set in Murder of Fla. State Law Prof Dan Markel

One of two men accused of gunning down Florida State University law professor Dan Markel in 2014 is scheduled to go to trial for murder in January.

A judge set the trial date for Jan. 22 at a hearing Tuesday. Sigfredo Garcia, 35, who prosecutors believe pulled the trigger, was originally scheduled to face a jury in November 2016 but that trial was postponed as investigators worked to bolster their case and prove a suspected link with Markel’s former in-laws. Garcia’s alleged accomplice in the murder, Luis Rivera, pleaded guilty in October and received a seven-year sentence. That’s in addition to a 12-year sentence he is currently serving for an unrelated crime.

Meanwhile, no trial date has been set for Garcia’s sometimes girlfriend Katherine Magbanua, who has been charged with first-degree murder for allegedly helping plot Markel’s killing.

The pace of news surrounding the high-profile case has slowed considerably since last fall, when police arrested Magbanua and Rivera implicated her and Garcia. At the time, it seemed prosecutors were moving in on several of Markel’s former in-laws, the Adelsons, whom they believe hired Garcia and Rivera to kill the law professor in a bid to relocate his two children with ex-wife Wendi Adelson from Tallahassee to South Florida. Criminal law experts speculated that prosecutors were trying to flip Magbanua to implicate the Adelsons.

But Magbanua—believed to be the link between the Adelsons and the alleged hitmen—has pleaded not guilty and remains in jail. Moreover, prosecutors have not brought charges against any members of the Adelson family, whom their lawyers have maintained had nothing to do with Markel’s death. However, prosecutors said last month that charges could still be brought against the Adelsons.

In court Tuesday, assistant state attorney Georgia Cappleman pushed for a November trial for Garcia. But Garcia’s attorney, Mutaqee Akbar, said their legal teams needed more time to conduct an investigation of the case.

“It’s our job now to dig into it and look at what the state didn’t look into,” he told the Tallahassee Democrat.

Markel, 41, an up-and-coming legal scholar and prominent law blogger, was shot in the head on July 18, 2014, in the driveway of his Tallahassee home. He was locked in a bitter custody dispute with ex-wife Wendi Adelson over the couple’s two young children at the time.

Prosecutors have said they believe that Wendi Adelson’s brother Charlie Adelson and possibly her mother Donna Adelson hired Garcia and Rivera to travel from Miami to Tallahassee to kill Markel, allowing Wendi Adelson and the couple’s children to move to South Florida, where the Adelson family runs a dental clinic.

They also allege that Magbanua, who was dating Charlie Adelson at the time and who is the mother of two of Garcia’s children, provided the connection between the Adelson family and the alleged hitmen. She is due in court next month for a hearing centered on who is paying for her private defense attorneys. Prosecutors suspect the Adelsons are footing the bills, while her defense attorneys have countered that her relatives are paying.

Contact Karen Sloan at ksloan@alm.com

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Baker McKenzie Tax Lawyers Wade Into Trump Litigation

A tax duo from Baker McKenzie joined the litigation bonanza against President Donald Trump on Thursday.

Tax partner George Clarke, along with associate Mireille Oldak, filed a lawsuit against the president in a D.C. federal court. Angela Vigil, another partner and executive director of the firm’s pro bono practice, is also on the case. The lawyers represent nonprofit group Citizens for Responsibility and Ethics in Washington and the National Security Archive at George Washington University, which claim Trump and his executive office are violating the Presidential Records Act.

The complaint alleges White House officials use email applications that destroy messages once read; that some of Trump’s “presidential statements” made on Twitter have been deleted; and that despite his claims of secretly taping some conversations, it’s unclear if the president is preserving said tapes. Several media outlets reported Thursday that no such tapes exist.

The PRA, which requires the president to maintain certain records, was enacted following the Watergate scandal.

“Critical checks and balances are built into our system of government, including those implemented through congressional and judicial oversight,” the lawsuit said. “The ability of those checks and balances to work depends on the availability of a record of President Trump’s actions.”

The complaint also alleges the president is disregarding his constitutional duty to “take care” that all laws are faithfully executed. The suit includes claims that the White House issues executive orders in order to consolidate decision-making power as opposed to using federal agencies, which are subject to more stringent open records requirements. The groups are seeking declaratory judgment that the president and his office are in violation of the law and an order requiring them to comply.

Few Big Law attorneys have taken on litigation directly challenging Trump and his administration. One of the most prominent examples is Hogan Lovells’ Neal Katyal, who represents the state of Hawaii against the president’s travel ban executive order.

Clarke confirmed he is working on the CREW case pro bono, but declined to comment on the litigation. Prior pro bono cases include the representation of several prisoners at Guantanamo Bay. Clarke is a former Marine, and typically works on international and federal tax issues.

Also on the case are CREW in-house lawyers Anne Weismann and Conor Shaw.

The suit is the latest from CREW, an organization headed by ethics lawyers Norm Eisen and Richard Painter, of the Barack Obama and George W. Bush administrations, respectively. Another suit brought by CREW in the Southern District of New York alleges that by maintaining ownership of his businesses, Trump is violating the Constitution’s foreign emoluments clause, which bars elected officials from taking gifts from foreign governments. CREW is also advising Maryland Attorney General Brian Frosh and D.C. Attorney General Karl Racine on a similar emoluments lawsuit against the president.

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Acosta Makes Apprenticeship Pitch to Manufacturing Trade Association

U.S. Labor Secretary Alexander Acosta on Wednesday promoted apprenticeship programs as key to closing the skills gap to a friendly audience of the National Association of Manufacturers, the powerful trade group that participated in many lawsuits against the U.S. Labor Department during the Obama administration.

The trade group, which held a two-day meeting in Washington, expressed hope for a new tilt toward business-friendly practices from the new leadership at the Labor Department, moving away from the “rough relationship” manufacturers said they had during the previous administration.

“The regulations were not good for business overall,” said Jay Timmons, president and CEO of the National Association of Manufacturers. He later added, “We are excited for a new chapter with the Department of Labor and working with you on the skills gap.”

Acosta’s remarks focused on apprenticeship programs. President Donald Trump last week issued an executive order to expand the programs and vocational training, with the hope to close the skills gap and reduce any hardships on workforce development programs. Trump’s order calls on the Labor secretary to propose regulations that promote development of apprenticeship programs by industry and trade groups.

“It is the policy of the federal government to find more affordable pathways to good jobs,” Acosta said. “We are easing regulatory burdens and eliminating those that aren’t effective and shifting funding to those that are.”

Acosta said Labor will work with the U.S. Education Department to enact programs to integrate their work with community college curricula.

“It’s an exciting moment for the American economy with 6 million vacant jobs,” he said. “The president is making good on job growth and his top priority, which is jobs, jobs and jobs.”

Acosta said unemployment in the manufacturing sector is 3.2 percent, lower than the national rate of 4.3 percent, and is the lowest it has been since 2001. He said there are 350,000 job openings in manufacturing, the highest number of openings since the U.S. Bureau of Labor Statistics started collecting the data.

“Filling jobs is harder than many understand,” Acosta said. “There is a gap in skills American workers have and skills many of these jobs require. When I visit those factories what I saw is so different. We need workers who know engineering and math to build, maintain and fix machines. Some need coding to run those machines. That is what we are looking for and those workers are in short supply.”

He said the industry should drive the change to promote apprenticeship programs and noted many companies are already working to do so.

Employers, Acosta said, “are in the position to know what skills are needed for today and tomorrow’s workplace. We will focus on those high-demand skills. The most obvious benefit is higher wages and ready jobs.”

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Class Action 'Pick-Off' Move Ruled a Balk in Federal Courts

A loophole left open for defendants in a critical class action ruling by the U.S. Supreme Court last year is making little headway in the courts, with the U.S. Court of Appeals for the Seventh Circuit striking down the procedural maneuver this week.

In a Tuesday opinion, the Seventh Circuit found that a defendant’s deposit of $3,600 into a court account that compensated the lead plaintiff in full did not moot the entire class action. Bisco Inc., the defendant in the case, deposited the funds after the U.S. Supreme Court’s ruling in Campbell-Ewald v. Gomez barred a similar tactic designed to “pick off” lead plaintiffs in class actions but reserved any opinion on whether the situation would be different had the defendant actually paid the funds.

Seventh Circuit Chief Justice Diane Wood, writing for the unanimous panel, wrote that Bisco made a “risky assumption” in interpreting Campbell-Ewald.

“From a broader perspective, we see no principle distinction,” she wrote. “In either case, all that exists is an unaccepted contract offer, and as the Supreme Court recognized, an unaccepted offer is not binding on the offeree.”

The ruling is the latest loss for defendants hoping to use the wording of Campbell-Ewald to bring a second wave of “pick-off” challenges in a class action. In its 6-3 decision, the Supreme Court found that “an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case.”

But Chief Justice John Roberts, in a dissent joined by Justices Antonin Scalia and Samuel Alito, wrote that the “majority’s analysis may have come out differently if Campbell had deposited the offered funds with the district court.” Alito, in a separate opinion, noted that a defendant could ensure it makes good on its offer by handing the plaintiff a certified check or depositing the funds “in a bank account in the plaintiff’s name.”

Since Campbell-Ewald, defendants have tried to make such payments to lead plaintiffs — with little success. The Ninth Circuit found last year that Allstate Insurance Co.’s deposit of $20,000 into an escrow fund for the lead plaintiff didn’t moot a class action. In an unpublished decision, the Sixth Circuit sided with the plaintiff in a case involving a $4,500 cashier’s check.

Laura McNally, a partner in the Chicago office of Loeb & Loeb, said similar challenges are percolating in the district courts. She said she expected more circuits to weigh in, possibly sending the issue back to the Supreme Court.

“This is going to continue to come up,” she said. “Because if it works, it could be such a powerful weapon for defendants.”

Adina Rosenbaum, an attorney at Public Citizen Litigation Group in Washington, who represented the plaintiff in the case before the Seventh Circuit, praised the panel’s “really compelling decision.” “This is a decision that other courts are likely to look at and find persuasive,” she said.

Jeffrey Halldin, a partner at Chicago’s Harrison & Held, who represented Bisco, did not respond to a request for comment.

Fulton Dental filed the suit in 2015 after receiving an unsolicited fax from Bisco in violation of the U.S. Telephone Consumer Protection Act. The TCPA allows statutory damages of $500 to $1,500 per violation.

Unlike Campbell-Ewald, which was based on an offer of judgment made under Federal Rule of Civil Procedure 68, Bisco made its payment under Federal Rule of Civil Procedure 67, which allows parties to deposit funds with the court. U.S. District Judge Edmond Chang of the Northern District of Illinois granted Bisco’s mootness motion, then entered judgment in the case.

But that procedure was premature, Wood wrote.

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Dakota Access Pipeline Legal Battle to Rage Through Summer

The protesters and cameras are gone and oil is flowing through the Dakota Access Pipeline in North Dakota, but the battle over the 1,200-mile pipeline continues in a federal courtroom in Washington, D.C.

In the next few months, a team of lawyers at Gibson, Dunn & Crutcher and Norton Rose Fulbright will try to convince a district judge to keep the pipeline open while the U.S. Army Corps of Engineers reassesses the permit it granted Dakota Access. The Standing Rock Sioux and other nearby tribes asked that the pipeline be shut down Wednesday during the Corps’ review.

Opening briefs on the issue from Dakota Access and the Corps were set for July 17, and the tribes’ response is due Aug. 7. A decision isn’t expected until as early as September.

Last week, in a 91-page opinion, Judge James Boasberg ruled the Corps’ permitting process was legally flawed. Boasberg ordered the Corps to conduct further review to determine if an EIS is needed, but declined to vacate the existing permit.

Leading the charge for Dakota Access, which joined forces with the Army Corps as an intervenor, are William Scherman, David Debold and Miguel Estrada of Gibson Dunn, and Kimberly Caine and Robert Comer of Norton Rose. Alan Glen of Nossaman is also on the team.

Opposing them is Jan Hasselman with the environmental legal group Earthjustice, who is arguing the case on behalf of the Standing Rock Sioux.

“Our view is that until there is a proper risk analysis that looks at the risk of oil spills, that considers the impacts to the tribe, they shouldn’t be operating that pipeline,” Hasselman said after the hearing. “We’ll be saying that as forcefully as we can to the court.”

Another concern for the tribes, raised multiple times during the hearing Wednesday, is whether the Corps will allow public comment and input from the tribes during the review. If they don’t, Hasselman said his clients will seek a court order requiring it.

“If the Army Corps goes into a room and closes the door and comes up with a new analysis, … we won’t have moved this ball forward. We won’t have solved any legal problem. We’ll just be back in front of the court again,” Hasselman said. “So our position is, this needs to be an open process.”

The tribes had argued that under the National Environmental Policy Act, the Corps should be required to conduct a full environmental impact statement, known as an EIS, before issuing a permit to Dakota Access. In December, the Obama administration rescinded the permit and ordered an EIS. But in February, the Trump administration rescinded that order and granted the permit.

For much of last year, the litigation ran parallel to massive protests by tribe members and activists at the pipeline construction site in North Dakota. An estimated 10,000 people camped out in the area to protest, the last of whom were cleared out in February. Tensions reached new heights after protests turned violent amid clashes with private security officers in September. North Dakota then-Gov. Jack Dalrymple even activated the state’s National Guard to assist local law enforcement with the protests.

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