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California Court of Appeal Rules that Challenge to Google’s Confidentiality Agreements May Proceed Past the Pleading Stage

On September 21, 2020, in a published 2-1 opinion in Doe v. Google Inc., the California Court of Appeal (Dist. 1, Div. 4), permitted three current and former Google employees to proceed with their challenge of Google’s confidentiality agreement as unlawfully overbroad and anti-competitive under the California Private Attorneys General Act (“PAGA”) (Lab. Code § 2698 et seq.). In doing so, the Court of Appeal reversed the trial court’s order sustaining Google’s demurrer on the basis of preemption by the National Labor Relations Act (“NLRA”) (29 U.S.C. § 151 et seq.) under San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244–245 (1959). The court held that while the plaintiffs’ claims relate to conduct arguably within the scope of the NLRA, they fall within the local interest exception to Garmon preemption and may therefore go forward. It remains to be seen whether plaintiffs will be able to sustain their challenges to Google’s confidentiality policies on the merits. However, Doe serves as a reminder to employers to carefully craft robust confidentiality agreements, particularly in the technology sector, in anticipation of potential challenges employees may make to those agreements.

Google requires its employees to sign various confidentiality policies. The plaintiffs brought a lawsuit challenging these policies on the basis that they restricted their speech in violation of California law. Specifically, the plaintiffs alleged 17 claims that fell into three subcategories based on Google’s confidentiality policies: restraints of competition, whistleblowing and freedom of speech. The claims were brought under PAGA, a broad California law that provides a private right of action to “aggrieved employees” for any violation of the California Labor Code. PAGA claims are brought on a representative basis—with the named plaintiffs deputized as private attorneys general—to recover penalties on behalf of all so-called “aggrieved employees,” typically state-wide, with 75% of such penalties being paid to the State and 25% to the “aggrieved employees” if the violation is proven (or a court-approved settlement is reached).

In their competition causes of action plaintiffs alleged that Google’s confidentiality rules violated Business & Professions Code sections 17200, 16600, and 16700 as well as various Labor Code provisions by preventing employees from using or disclosing the skills, knowledge, and experience they obtained at Google for purposes of competing with Google. The court noted that section 16600 “evinces a settled legislative policy in favor of open competition and employee mobility” that has been “instrumental in the success of California’s technology industry.” The plaintiffs complained that Google’s policies prevented them from negotiating a new job with another employer, disclosing who else works at Google, and under what circumstances the employee may be receptive to an offer from a rival employer.

With respect to their whistleblowing claims, the plaintiffs alleged that Google’s confidentiality rules prevent employees from disclosing violations of state and federal law, either within Google to their managers or outside Google to private attorneys or government officials in violation of Business & Professions Code section 17200 et seq. and Labor Code section 1102.5. Similarly, it is alleged that the policies ostensibly prevented employees from disclosing information about unsafe or discriminatory working conditions, a right afforded to them under the Labor Code.

In their freedom of speech claims, plaintiffs alleged that Google’s confidentiality rules prevent employees from engaging in lawful conduct during non-work hours and violate state statutes entitling employees to disclose wages, working conditions, and illegal conduct under various Labor Code provisions. The employees argued this conduct could be writing a novel about working in Silicon Valley or to even reassure their parents they are making enough money to pay their bills—i.e., matters seemingly untethered to a legitimate need for confidentiality.

While Google’s confidentiality rules contain a savings clause—confirming Google’s rules were not meant to prohibit protected activity—the plaintiffs argued that the clauses were meaningless and not implemented in its enforcement of its confidentiality agreements.

Google demurred to the entire complaint, and the trial court sustained the demurrer as to plaintiffs’ confidentiality claims, agreeing that the NLRA preempted such claims.

On appeal, the Court of Appeal recognized that the NLRA serves as a “comprehensive law governing labor relations [and] accordingly, ‘the NLRB has exclusive jurisdiction over disputes involving unfair labor practices, and “state jurisdiction must yield’ when state action would regulate conduct governed by the NLRA. (Garmon, [supra, 359 U.S.] at pp. 244-245.)” But the court cautioned that NLRA preemption under Garmon cannot be applied in a “mechanical fashion,” and its application requires scrutiny into whether the activity in questions is a “merely peripheral concern” of the NLRA or where the “regulated conduct touche[s] interests so deeply rooted” in state and local interests.

In analyzing the federal and state issues at state, the Court of Appeal found that several of the statutes undergirding plaintiffs’ PAGA claims did not sound in principles of “mutual benefit” that are the foundation of the NLRA but protected the plaintiff’s activities as individuals. The court cited several examples, including Labor Code section 242 prohibition of employers preventing employees from disclosing the amount of his or her wages (a statute enacted to prevent sex discrimination) and Labor Code section 232.5, prohibiting an employee from disclosing information about the employer’s working conditions (manifesting California’s policy to prohibit restrictions on speech regarding conditions of employment). The court likewise found that the NLRA did not protect much of the activity prohibited by the statutes that supported plaintiffs’ PAGA claims, noting that the NLRA did not prohibit rules inhibiting employees from seeking new employment and competing with Google, as plaintiffs alleged Google’s confidentiality rules did. It further does not protect whistleblowing activity unconnected to working conditions, such as violations of securities law, false claims laws, and other laws unrelated to terms and conditions of employment.

Nevertheless, the court held that, regardless of diverging purposes of the NLRA and the laws that support the plaintiffs’ PAGA claims, plaintiffs’ claims fall squarely in the local interest exception to NLRA preemption. Where an employer’s policies are arguably prohibited by the NLRA, the local interest exception to NLRA preemption applies when (1) there is a “significant state interest” in protecting the citizen from the challenged conduct, and (2) the exercise of state jurisdiction entails “little risk of interference” with the NLRB’s regulatory function. The court found no difficulty in determining that an action under PAGA, where the plaintiffs are serving as a “proxy or agent of the state’s labor law enforcement agencies” grows from “deeply-rooted local interests” in regulating wages, hours, and other terms of employment. It also found that a state’s enforcement of its minimum employment standards, particularly in relation to the plaintiffs claims in this case, were peripheral to the NLRA’s purpose of safeguarding, first and foremost, workers’ rights to join unions and engage in collective bargaining. Thus, the court held, there was no basis for NLRA preemption in this case.

Particularly in light of this opinion, employers who require employees to execute confidentiality agreements with their employees should be cognizant of the myriad of ways that they can be challenged. As in the case of Doe v. Google, Inc., such challenges may not be just from individuals bringing claims in their own capacity, but as private attorneys general bringing representative claims on behalf of all California employees. Nor can NLRA preemption be mechanically applied to preempt claims based upon such agreements. Employers would be well-advised to review their existing confidentiality agreements and consult experienced counsel before revising or rolling out such agreements.

ARTICLE BY Sami Hasan of Sheppard, Mullin, Richter & Hampton LLP

For more articles on labor law, visit the National Law Review Labor & Employment section.

Louis Vuitton Playing Chess or Checkers? The CJEU Annuls’ The Invalidation of Louis Vuitton EU Trademark

Louis Vuitton received a favorable decision from the EU General Court (“General Court”) in June 2020 which may assist brand owners seeking IP protection of their decorative patterns. The decision confirms the distinctive character an EU trade mark must possess in order to benefit from protection throughout the EU as well as highlighting how patterns may be protected through registration as a trade mark rather than under other forms of IP protection such as copyright or design protection. However, the decision also reaffirmed the EU’s strict approach to assessing the unitary character of EU trade marks, which potentially sets a high bar for applicants to clear.

Background

In 2008, Louis Vuitton had obtained EU trade mark protection for the mark displayed below, the Damier Azur mark, in relation to class 18 goods including luggage, bags and leather goods. In 2015 a Polish individual, Norbert Wisniewski, challenged the validity of the mark by filing an application for invalidity with the EUIPO.

In 2016 the Cancellation Division of the EUIPO declared Louis Vuitton’s trade mark invalid under Article 59(1)(a) of the EU Trade Mark Regulation (“EUTMR”) on the grounds that the mark was devoid of any distinctive character in line with Article 7(b) of the EUTMR. The Cancellation Division did not agree with Louis Vuitton’s claim that the mark had acquired distinctiveness through its use. Louis Vuitton then took its claim to the EUIPO Second Board of Appeal who also dismissed their claim and agreed with the Cancellation Division.

General Court

In 2019 the matter was appealed to the General Court of the CJEU and Louis Vuitton put forward two main arguments that:

the Second Board of Appeal had incorrectly assessed the inherent distinctive character of the Damier Azur mark as the Board had relied on ‘well-known facts’ to supplement the arguments presented by Mr Wisniewksi in the absence of any concrete and substantial evidence for a declaration of invalidity; and
the Board of Appeal had failed to carry out an overall assessment of the Damier Azur mark and had therefore erred in its assessment of the distinctive character acquired through use of the mark.

With regard to point one, the General Court considered that the Board of Appeal had relied upon a number of well-known facts in its decision including how the chequerboard pattern of the mark was a commonplace figurative pattern, which is permissible. The General Court determined that the Board had been correct in its finding that the mark was a basic and a commonplace pattern that did not depart significantly from the norms of the sector and that this was a well-known fact within the meaning of case law. The first argument was therefore rejected.

As to argument two, the General Court inferred that the Board of Appeal had focused on evidence which expressly referred to a specific set of Member States and had excluded other evidence without conducting any further analysis on said evidence. The General Court determined that the excluded evidence did contribute to the arguments put forward by Louis Vuitton concerning the acquired distinctiveness of the mark including the widespread use of the mark across the whole of the EU and the market shares held by the mark in each Member State. The General Court thus found that the Board of Appeal had failed to sufficiently take into account the distinctive character of the mark in relation to the goods and services for which it is registered.

Takeaway points

The decision by the General Court reaffirms the wide scope of evidence and rigorous determination that must be followed by the courts and IP administrative bodies. The General Court also emphasized the need for a mark to be distinctive throughout the whole of the EU rather than just across a defined set of Member States, which is often a high threshold for applicants to meet (as seen in the Kit Kat case, among others). Although the General Court did annul the decision of the Second Board of Appeal on the basis of an error in the full assessment of the evidence, it is still not yet fully clear whether Louis Vuitton’s excluded evidence would be sufficient to prove the required distinctiveness of the mark as the General Court made no comment on this point. This is an intriguing space to follow and we will keep you updated as the case progresses.

ARTICLE BY Simon Casinader and Niall J. Lavery of K&L Gates

For more articles on IP law, visit the National Law Review Intellectual Property section.

Court Affirmed Finding That Testator Had Capacity To Execute A Will, Was Not Unduly Influenced, And That The Appointment of Co-Executors Was Appropriate

In In the Estate of Flarity, a son of the testator challenged the trial court’s probating of a 2004 will and the appointment of two of his siblings, named in that will, as executors. No. 09-19-00089-CV, 2020 Tex. App. LEXIS 7536 (Tex. App.—Beaumont September 17, 2020, no pet. history). The contestant alleged that the testator did not have mental competence. The court of appeals disagreed. The court first addressed the standard for mental competency challenges:

In reviewing evidence addressing a testator’s capacity, we focus on the condition of the testator’s mind on the day the testator executed the will. Under Texas law, whether a testator has the testamentary capacity hinges on the condition of the testator’s mind the day the testator executed her will. Thus, the proponents of the will must prove that, when the testator signed the will, she could understand: the business in which she was engaged, the nature and extent of her property, the persons to whom she meant to devise and bequeath her property, the persons dependent on her bounty, the mode of distribution that she elected to choose among her beneficiaries, a sufficient memory so she could collect the elements of the business she wanted to transact and hold it in mind long enough to allow her to perceive the relationship between property and how she wanted to dispose of it, all so she could form reasonable judgments about doing those things.

Id. Applying those legal principals, the court held that the evidence was sufficient to support the trial court’s finding that the testator had capacity. There was testimony from the two children that were executors that the testator knew what she was doing. The contestant relied on his own testimony that the testator suffered from recurring depression many times in her life, including 2004. The court held:

But there is no expert testimony showing Paula was clinically depressed. There are not medical records in evidence that support Joe’s claim. While Joe argues Paula was not being treated for her condition in 2004, he never established that she was suffering from depression that year, as the parties never developed evidence about whether Paula was or was not seeing doctors at any time for any reasons at a time relevant to the day Paula signed the will. Furthermore, even Joe and Becky never testified that Paula told them at any time in 2004 that she was being treated for depression.

Id. Further, the court held that the testator had a reason for her will and there was no evidence that the executors influenced her:

Generally, the evidence admitted in the trial reflects that Paula chose to give her children a percentage share of her estate based on how much time they spent with her as she aged. Joe does not contend the evidence shows he spent more time with Paula than his siblings. Nor does he suggest that Paula miscalculated how much time he spent with her when compared with his siblings. Instead, Joe argues that Wes and Merrie obtained a larger share because they spent more time with her. That may be true, but that evidence does not show that Merrie and Wes used their influence to get Paula to change her will in a way that favored them during a period that Paula could not freely make that decision on her own.

Id.

Finally, the court of appeals affirmed the trial court’s appointment of the co-executors. The court stated the legal standard as:

When a testator nominates a person to be the executor of her will, the law requires the probate court to appoint that person to that office unless one of the enumerated exceptions in the Estates Code applies. The exceptions allow the probate court to choose someone else other than the person the testator named if the person the testator named renounces the appointment, or the evidence shows the person is “not qualified,” statutorily disqualified, or “unsuitable” for the office. Since the Estates Code requires probate courts to appoint the person the testator nominated in her will absent one of the listed exceptions, Joe was required to prove in the trial that Wes and Merrie were not qualified, statutorily disqualified, or unsuitable for the office. Thus, since Joe is attacking an adverse finding on which he had the burden of proof in the trial, he “must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.” To do that, he must show the evidence before the probate court conclusively shows one of the enumerated exceptions to the provisions requiring probate courts to appoint the person the testator designated applies

Id. The court held that evidence from the contestant of hostility was not sufficient to show that the co-executors were not suitable. The court also held that the fact that one of the co-executors let her son live a home owned by the estate without the payment of rent was not a conflict as that could be viewed as a benefit to the estate (having someone protect and upkeep estate property) and that the co-executor was a part owner of the home and had the right to have her son live there without paying rent (in the absence of an objection co-owner). The court of appeals affirmed the trial court in all things.

ARTICLE BY David Fowler Johnson of Winstead

For more articles on wills, visit the the National Law Review Estates & Trusts section.

When Increasing Productivity Can Backfire

Time theft, especially in an age of booming remote work, is a serious concern for employers.

Time theft’s cost on productivity motivates many companies to explore ways to reduce it. In a recent case, time theft motivated a company to implement a timekeeping system that clocked employees through their fingerprints instead of the usual badges or employee numbers. As this case illustrates, however, an attempt to increase productivity by decreasing time theft can quickly lead to bleeding resources into litigation. Further, in some circumstances, the bleeding can turn into hemorrhaging, such as when a defendant finds itself simultaneously litigating in state and federal court.

In Burlinski v. Top Golf USA, Inc., No. 19-cv-06700, 2020 U.S. Dist. LEXIS 161371 (N.D. Ill. Sep. 3, 2020), the defendant faced a class action lawsuit by former employees over alleged timekeeping practices. It allegedly required its employees to record their time by scanning their fingerprints. The defendant’s purpose for using fingerprints in lieu of timecards or unique employee numbers was to prevent time theft by precluding employees from recording time for anyone but themselves.

The plaintiffs were employed in Illinois, which implicated state privacy laws. Illinois is one of a few states with laws regulating the collection of fingerprints and other biometric data. A company may be liable under the Illinois Biometric Privacy Act (“BIPA”) if it does not: (1) maintain a public retention and destruction schedule before collecting biometric data; or (2) acquire written consent prior to collecting biometric data or disclosing such data to third parties.

Procedural trouble began when the defendant removed the suit. While the district court was evaluating the defendant’s motion to dismiss and the plaintiffs’ motion to remand, the Seventh Circuit issued an opinion that changed everything. In Bryant v. Compass Grp. USA, Inc., 958 F.3d 617, 624-26 (7th Cir. 2020), the Seventh Circuit ruled on whether district courts had Article III jurisdiction over BIPA claims. The court found there was jurisdiction over claims alleging that a company failed to obtain written consent prior to collecting biometric data. The court, however, found there was no jurisdiction over claims alleging a failure to maintain a public retention and destruction schedule prior to collecting biometric data. In other words, federal courts have jurisdiction over some BIPA claims, but not others. Burlinski contained both types of claims.

Bryant had an immediate effect in Burlinski. The court remanded one claim to state court and kept the remaining claims. The court then rejected the defendant’s arguments to dismiss the removed claims, and the defendant found itself simultaneously litigating in state and federal courts.

To sum it up, Burlinski serves as a reminder for companies to vigorously ensure their own compliance with any applicable privacy statutes. With many services now turning remote, time theft will likely become only a larger problem. Before implementing a new timekeeping system, however, companies should recall the tale of Burlinski and its double litigation.

ARTICLE BY Aaron C. Garavaglia of Squire Patton Boggs (US) LLP

For more articles on employment, visit the National Law Review Labor & Employment section.

Subpoena Motion Practice in Multidistrict Litigation: The Conflict on Authority Over Subpoena-Related Disputes

A key purpose of multidistrict litigation (MDL) is centralized management of pretrial proceedings to avoid duplicative discovery and resolve common issues in an efficient manner. An MDL court becomes sufficiently familiar with the facts, scientific issues, and procedural history of the litigation to often allow a just and efficient resolution of complex discovery disputes.

One type of dispute common in MDL proceedings concerns third-party discovery. Often, third parties are essential sources of critical information about a claim—such as physicians who treated a plaintiff in product liability litigation. Just as frequently, these third parties are located outside the district of the MDL judge, forcing parties to serve extra-district subpoenas to obtain such discovery.

When disagreements arise over the scope or content of a subpoena, Rule 45 of the Federal Rules of Civil Procedure requires such disputes to be brought in the “district court where compliance is required,” which is rarely the MDL court. Those situations raise the question whether the MDL court can exercise jurisdiction over subpoena-related disputes despite the mandate of Rule 45. This article analyzes the apparent conflict between Section 1407’s authorization of MDL courts to resolve pretrial disputes and Rule 45’s subpoena requirements, and how courts have resolved this conflict for MDL litigants.

The Conflict Between the MDL Court’s Authority to Manage Pretrial Proceedings and Rule 45’s “Where Compliance Is Required” Requirement.

At the heart of the dispute over where parties should bring subpoena-related motions in MDL proceedings is the conflict between Rule 45 and Section 1407. In ordinary cases, Rule 45(d) provides that a party must move to enforce or quash a subpoena in “the district where compliance is required”—typically, the district where the individual or entity resides. But in enacting Section 1407, Congress centralized management of pretrial proceedings in a single federal court to ensure the “just and efficient” conduct of the litigation.[1] Indeed, a key role of multidistrict consolidation is to “avoid duplicative discovery, prevent inconsistent pretrial rulings and conserve judicial resources.”[2]

To further these goals, Section 1407 also provides MDL courts with the authority to “exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions.”[3] Thus, whether this statutory language authorizes MDL courts to manage subpoena disputes involving extra-district nonparties requires courts to confront the “apparent conflict” between Rule 45 and Section 1407.[4]

Who Has Jurisdiction Over Extra-District Nonparty Subpoenas?

Leading Decisions Hold that MDL Courts Have Broad Authority to Enforce Extra-District Subpoenas Under Section 1407

The two leading decisions analyzing the conflict between Section 1407 and Rule 45 arose out of a multidistrict qui tam action consolidated in the District Court for the District of Columbia in U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc. In Pogue, the relator served subpoenas duces tecum on nonparty businesses headquartered in Tennessee.[5] After the parties failed to resolve disagreements over the scope of the subpoenas, the relator sought to enforce them in the MDL district court. The nonparties opposed enforcement there, contending that under Rule 45, the subpoenas could only be enforced “where compliance is required”—in that case, the Middle District of Tennessee.[6]

The MDL court noted that “[w]ere this an ordinary case, [the nonparties] would be correct and this case would be easily disposed of” given Rule 45.[7] But it observed that this was “not an ordinary case” because the Judicial Panel on Multidistrict Litigation had “transferred to this Court related qui tam actions pending across the country under the authority of 28 U.S.C. § 1407.”[8] The court explained that the purpose of MDL actions is to ensure the “just and efficient” conduct of pretrial proceedings involving common issues and “to eliminate duplicative discovery, pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary.”[9] It then held that “to that end, § 1407 bestows upon the transferee court the power to exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in MDL cases.”[10]

Although the MDL court found that while it was not “a settled question” whether it had jurisdiction over extra-district subpoenas, “the weight of authority and effectuation of the purposes of multidistrict litigation support a finding of jurisdiction,” and that “§ 1407 confers on MDL judges the power to supervise depositions taking place in other jurisdictions.”[11] The court also found that the use of the term “shall” in Section 1407(b) “mandates that such motions be heard by the MDL court.”[12] Thus, the court determined that it had jurisdiction over the relators’ motions to compel the extra-district nonparties to comply with the subpoenas.[13]

In a later appeal, the Sixth Circuit[14] agreed with the MDL court, observing that “the Federal Rules are designed to ensure that district courts remain firmly in control of those depositions and document productions involving nonparties located in their districts.”[15] Because the Federal Rules “could hamstring an MDL court’s ability to conduct coordinated pretrial proceedings over cases that have been consolidated from far-flung foreign districts, the MDL statute empowers an MDL judge to act as a judge of the deposition or discovery district.”[16] The court, therefore, held that “[a] judge presiding over an MDL case” could rule on subpoena-related motions “notwithstanding the nonparty’s physical situs in a foreign district where discovery is being conducted.”[17]

Courts Have Expressed Conflicting Views on Whether an MDL Court Can Enforce an Extra-District Subpoena Duces Tecum

As one court has observed, “[t]he overwhelming majority of courts that have considered the issue of whether Section 1407(b) authorizes a transferee judge the power to act as any judge of any district for pretrial depositions as well as subpoenas duces tecum, have found that it does.”[18] For example, the District Court for the District of Puerto Rico in In re San Juan Plaza Hotel Fire Litig. found that to effectuate the purpose of multidistrict litigation, it is “necessary to append to the transferee judge enforcement powers in relation to subpoenas issued in the deposition district, including depositions and subpoenas addressed to nonparties.”[19] Likewise, the District Court for the District of Kansas in In re EpiPen Mktg., Sales Practices and Antitrust Litig. observed that the “statute’s remedial purpose of eliminating the potential for conflicting contemporaneous pretrial rulings would be frustrated if the MDL court could not entertain motions to compel [compliance with subpoenas in other districts].”[20] Other courts have reached similar conclusions when presented with the conflict between Rule 45 extra-district subpoenas and Section 1407.[21]

A small minority of courts, however, has narrowly construed Section 1407(b) as authorizing an MDL court to enforce deposition subpoenas—but not document subpoenas. For example, in In re Packaged Seafood Prod. Antitrust Litig., the MDL court declined to exercise jurisdiction over enforcement of a subpoena duces tecum. The court acknowledged that Section 1407(b) authorized it to exercise the powers of a district judge in any district “for the purpose of conducting pretrial depositions,” and that “may necessarily include the power to enforce deposition subpoenas.”[22] But it drew a distinction between a deposition subpoena and a subpoena duces tecum—a distinction which it found “makes a difference.”[23] In refusing to enforce the subpoena duces tecum, the court reasoned that “[t]he extension of jurisdiction in MDL cases to the conduct of pretrial depositions” is not “tantamount to extending jurisdiction to enforce document subpoenas on third parties.”[24]

Other courts have also interpreted Section 1407 narrowly. In VISX, Inc. v. Nidek Co., et al., the District Court for the Northern District of California found that “§ 1407(b) expands a transferee court’s discovery powers only to pretrial depositions,” and that “[h]ad Congress wanted to expand these powers to document subpoenas, it would have said so.”[25] In In re Monat Hair Care Prod. Mktg., Sales Practices & Prod. Liab. Litig., the District Court for the Southern District of Florida found “the reasoning of In re Packaged Seafood and VISX persuasive” that “Section 1407(b) does not expressly exempt MDL courts from Rule 45’s dictates; rather, it expressly gives MDL courts the discretion to exercise the powers of a district judge in any district only for the purpose of conducting pretrial depositions.”[26] Thus, given that “Section 1407(b) makes no reference to subpoenas for the production of documents,” the court held that Rule 45 mandated that only the Middle District of Florida had jurisdiction to enforce the nonparty, nonresident subpoena.[27]

That said, courts holding that MDL courts lack jurisdiction over extra-district document subpoenas are in the minority. Indeed, the 6th Circuit in Pogue noted that while “[a]n argument can be made that the Section 1407(b)’s grant of authority to the MDL judge to oversee nonparty discovery occurring outside of the MDL district does not extend to enforcement of documents-only subpoenas,” the “rationale underlying the MDL statute of ‘just and efficient’ resolution of pretrial proceedings requires the conclusion that Section 1407(b)’s grant of authority applies to both deposition and document-only subpoenas.”[28] Most other courts that have considered the issue have similarly agreed that “[i]n keeping with the efficiency goals of the MDL statute,” an MDL court’s authority “extends to overseeing subpoenas for documents.”[29]

A Motion to Transfer to the MDL Is a Viable Alternative

If an opposing party has already moved under Rule 45(d) to quash or modify a subpoena in the “district where compliance is required,” or an MDL court declines to exercise jurisdiction over the initial subpoena-related motion, a Rule 45(f) transfer for “exceptional circumstances” to the MDL court can be appropriate. Although the term “exceptional circumstances” is not defined in Rule 45, the Advisory Committee Notes provide that while the “prime concern” when considering transfer “should be avoiding burdens on local nonparties subject to subpoenas,” in “some circumstances . . . transfer may be warranted in order to avoid disrupting the issuing court’s management of the underlying litigation[.]”[30] And courts have found “exceptional circumstances warranting transferring subpoena-related motions . . . when transferring the matter is in the interests of judicial economy and avoiding inconsistent results.”[31]

In re Disposable Contact Lens Antitrust Litig. provides an especially applicable analysis of Rule 45(f) and MDL subpoenas. Here, plaintiffs issued a subpoena duces tecum to a nonresident third party, which ultimately refused to comply with the subpoena.[32] Plaintiffs moved to enforce the subpoena in the MDL court, which found that it lacked authority to rule on the motion because, under Rule 45, “a party seeking to compel compliance with a subpoena must file its motion in ‘the district where compliance is required.’”[33] Following the MDL court’s ruling, plaintiffs filed an action in the District Court for the District of Columbia—where compliance was sought—to transfer the subpoena-enforcement motion to the MDL court under Rule 45(f) or, in the alternative, enforce the subpoena.[34] After engaging in an exacting analysis, the district court found that transfer of the motion to enforce the subpoena to the MDL proceeding was appropriate.

First, the court observed that the “MDL status of the underlying litigation is surely an ‘exceptional circumstance’ that weighs strongly in favor of transfer to the Issuing Court under Rule 45(f), because the same concerns about orderliness and disruption that led to the consolidation of actions as an MDL in the first place arise with respect to pretrial disputes regarding subpoenas issued in the context of that complex litigation.”[35] Second, the court noted that it was “highly unlikely” that the respondent would need to travel to the MDL court in Florida, as a telephonic hearing on the motion was likely, and thus there was no undue burden to the nonresident respondent.[36] And lastly, given the that the MDL was a “rather a highly complex case and potentially a class action asserting nationwide antitrust claims against five large corporate defendants,” the district court found that the MDL court was best situated to decide whether the subpoena should be enforced.[37] Thus, given that the “factors that weigh in favor of transferring this subpoena dispute” were abundant, the district court granted plaintiffs’ motion and transferred the motion to the MDL court.[38]

Conclusion

While the language of Rule 45 suggests that subpoena-related disputes can only be resolved in the “district where compliance is required,” MDL litigants should be aware of the authority granted to MDL courts under Section 1407. The MDL court is often better suited to resolve such disputes given its extensive knowledge of the facts and science surrounding the litigation and the history of the litigation. In the event that an MDL court declines to exercise direct jurisdiction over a dispute concerning a subpoena duces tecum, a Rule 45(f) transfer of a motion from the local district to the MDL court is a feasible alternative. With either approach, MDL litigants can better ensure that complex subpoena-related disputes are resolved by the MDL court in an efficient manner that reduces the potential for inconsistent rulings or duplicative discovery.

[1] In re New York City Mun. Sec. Litig., 572 F.2d 49, 51 (2d Cir. 1978) (quoting H.R. Rep. No. 1130, 90th Cong., 2d Sess.).

[2] In re Air Disaster, 486 F. Supp. 241, 243 (J.P.M.L. 1980).

[3] 28 U.S.C. § 1407(b).

[4] E.g., In re Mentor Corp. Obtape Transobturator Sling Prod. Liab. Litig., No. CIV.A. 09-3073JAP, 2009 WL 3681986, at *2 (D.N.J. Nov. 4, 2009); In re Subpoenas Served on Wilmer, Cutler & Pickering & Goodwin Proctor LLP, 255 F. Supp. 2d 1, 1 (D.D.C. 2003).

[5] 238 F. Supp. 2d. 270, 273 (D.D.C. 2002).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. (citing 28 U.S.C. § 1407(b); Man. for Complex Litig. (Third) § 21.424 (2002)) (internal quotations omitted).

[11] Id. at 273-74 (citing In re Corrugated Container Antitrust Litig., 662 F.2d 875, 879 (D.C. Cir. 1981)).

[12] Id. at 275.

[13] Id. at 279.

[14] As noted in the 6th Circuit’s opinion, appeal from exercise of an MDL judge’s authority to act as a judge of the deposition or discovery district “lies in the circuit court embracing that deposition or discovery district.”

[15] U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 444 F.3d 462, 468 (6th Cir. 2006).

[16] Id. at 468.

[17] Id. at 468-69.

[18] In re: Intel Corp. Microprocessor Antitrust Litig., No. 05-1717-JJF, 2007 WL 9612142, at *3 (D. Del. May 18, 2007), report and recommendation adopted, No. 05-1717-JJF, 2007 WL 9612141 (D. Del. June 14, 2007); see also In re Mentor Corp. Obtape Transobturator Sling Prod. Liab. Litig., No. CIV.A. 09-3073JAP, 2009 WL 3681986, at *2 (D.N.J. Nov. 4, 2009) (finding that “most courts which have addressed this issue have concluded that section 1407(b) empowers an MDL transferee court to exercise the powers of any other district court, including the enforcement of subpoenas.”).

[19] 117 F.R.D. 30, 32 (D.P.R. 1987).

[20] 2018 WL 2926581, *3 (D. Kan. June 11, 2018).

[21] See, e.g., In re Am. Med. Sys., Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. 2325, 2017 WL 1090029 (S.D.W. Va. Mar. 21, 2017); In re Neurontin Mktg., Sales Practices & Prod. Liab. Litig., 245 F.R.D. 55 (D. Mass. 2007); In re Accutane Prod. Liab. Litig., No. 804MD2523T30TBM, 2006 WL 1000311 (M.D. Fla. Apr. 14, 2006).

[22] No. 15-MD-2670-JLS-MDD, 2018 WL 454440, at *2 (S.D. Cal. Jan. 17, 2018) (citing 28 U.S.C. § 1407(b)).

[23] Id.

[24] Id.

[25] 208 F.R.D. 615, 616 (N.D. Cal. 2002).

[26] No. 18-MD-02841, 2020 WL 1950463, at *2 (S.D. Fla. Apr. 23, 2020).

[27] Id.

[28] U.S. ex rel. Pogue, 444 F.3d. at 468 n.2.

[29] In re Photochromic Lens Antitrust Litig., No. 8:10–md–2173–T–27, 2012 WL 12904391, at *2 (M.D. Fla. Dec. 20, 2012) (collecting cases); see also In re Bank of New York Mellon Corp. Forex Transactions Litig., No. 11 CIV. 9175 LAK JLC, 2014 WL 2884726, at *1 (S.D.N.Y. June 26, 2014) (“Despite [Section 1407(b)’s] limiting language as to depositions, however, it is widely accepted that this authority extends to all pretrial proceedings, including governance of non-party, extra-district subpoenas.”).

[30] Rule 45(f), 2013 Advisory Committee Note.

[31] Wultz v. Bank of China, Ltd., 304 F.R.D. 38, 46 (D.D.C. 2014); see also In re Braden, 344 F. Supp. 3d 83, 91 (D.D.C. 2018) (finding that transfer of subpoena-related motion to Southern District of Ohio “is appropriate to avoid disrupting the underlying litigation.”).

[32] 306 F. Supp. 3d 372, 374 (D.D.C. 2017).

[33] Id.

[34] Id.

[35] Id. at 378.

[36] Id. at 379-81.

[37] Id. at 381 (internal quotations omitted).

[38] Id. at 383.

ARTICLE BY The National Law Review’s Guest Contributors Matthew A. Campbell and Rand K. Brothers of Winston & Strawn LLP.

For more on subpoenas, see the National Law Review Civil Procedure Law section.

The Intersection of Libel Law and Politics

Libel Commentary

Since its beginning, the American Republic has debated sedition, free speech, and protection of reputation. After we cut our British roots we ensured our right to criticize our leaders, the politicians who control our government. The British crown demanded loyalty of its printers, but American courts would not tolerate such prosecutions as the notion of a truly free press emerged.

Today, we are witnessing an intense intersection of politics and libel law unlike anything we’ve seen since the 1960s. Politicians are suing for libel damages and being sued. The current overlap of politics and libel includes a push by the president of the United States to change libel law. Those who seek change, including President Trump, say they want to make it easier for plaintiffs to prevail and collect damages. Careful what you wish for, though, because such change would ease the path for plaintiffs seeking to collect damages from public officials such as Donald Trump.

Heading into the 2020 election, the Trump campaign filed three lawsuits in a 10-day period against mainstream media.

Legal scholars and pundits have opined that Trump’s pending libel complaints against The New York Times, The Washington Post, and CNN are weak or even dead on arrival. These analysts point out that Trump’s campaign is seeking damages due to political opinions, which are protected speech under the First Amendment.

As a life-long public figure and now public official, Trump (his re-election campaign is the plaintiff) must prove that the media defendants acted with actual malice, that is, reckless disregard for the truth or that they published information knowing it was false. The actual malice standard is well established through the First Amendment by a unanimous U.S. Supreme Court in New York Times v. Sullivan in 1964.

Win or lose in court, the president’s libel lawsuits also are political messaging, dramatic actions that complement his anti-press rhetoric. The stories about the libel suits are arguably more effective than the libel suits themselves in the president’s battles to discredit the mainstream press. In addition to political messaging, libel claims – even when they fail in court — can be a form of punishment.

Historical Context

Presidential involvement in libel litigation is rare, but not unprecedented. President Theodore Roosevelt was irritated by published allegations of corruption in the sale of the Panama Canal. He pushed the Justice Department to prosecute publisher Joseph Pulitzer and other newspapermen for criminal libel. Courts later quashed indictments.

After his presidency, Roosevelt was sued for libel by a New York political figure (William Barnes) who objected to being called corrupt by Roosevelt. The jury trial, in Syracuse in 1915, was grist for Dan Abrams’ book “Theodore Roosevelt for the Defense.” The jury ruled in Roosevelt’s favor; he seemed to thrive in legal combat, the book says.

Fifteen years ago, there was speculation about the prospect of President George W. Bush suing the National Enquirer. The Enquirer published a report based on unnamed sources who claimed that pressures of the job led Bush to drink, even though he said he gave up alcohol on his 40^th birthday.

“The president would be exceptionally ill-advised to file suit over this story, even if he knows . . . it’s false,” wrote First Amendment lawyer Julie Hilden in 2005.

She suggested such a suit would likely fail because its “actual malice” claim appeared to be weak. Plus, she warned, the suit would expose the president to civil discovery. Bush did not sue.

After the 1964 election, Republican presidential candidate Barry Goldwater successfully sued Fact Magazine and its publisher for an article questioning Goldwater’s mental fitness to hold office (Goldwater v. Ginzburg). Federal courts found that Goldwater’s complaint met the actual malice standard, awarding $75,000. The U.S. Supreme Court, in 1970, declined to hear the case.

Trump’s Track Record

In seven earlier speech-related cases filed by Donald Trump or his companies before he became president, four were dismissed on the merits, two were voluntarily withdrawn, and one was an arbitration won by Trump by default. These findings were compiled by Susan E. Seager, a First Amendment attorney who teaches media law at University of Southern California. Indeed, this appears to be a way of life for the highly litigious Trump, who has been involved in approximately 4,000 legal battles over the past 30 years, both as a plaintiff and defendant. An exhaustive analysis by USA Today detailed those seven libel cases where he initiated the lawsuits and seven more where he was named defendant. These don’t even include the threats of suits, the so-called “I’ll sue you” effect that can too often chill speech.

A common thread of these cases is the pursuit of jumbo damages. Trump alleged $5 billion in damages (in New Jersey state court) because author Timothy O’Brien and his book publishers cast doubt on the size of the real estate mogul’s wealth. Trump lost after five years of litigation but assessed the outcome this way to The Washington Post: “I spent a couple of bucks on legal fees but they spent a whole lot more. I did it to make [O’Brien’s] life miserable, which I’m happy about.”

Judicial Nominations

Judicial appointments are a priority for the Trump Administration. Interestingly, a judge nominated by the president in 2018 dismissed (with prejudice) a case filed by a Republican congressman.

On August 5, 2020, U.S. District Court Judge C.J. Williams of the Northern District of Iowa dismissed Congressman Devin Nunes’ defamation complaint against Esquire writer Ryan Lizza and its publisher. The judge said published criticism of Nunes (R-CA) was not actionable (Devin G. Nunes v. Ryan Lizza and Hearst Magazine Media, Inc).

Interestingly, part of this recent case deals directly with President Trump and his tweets. I’ll quote Judge Willliams’ opinion regarding Trump’s tweet that “Obama had my ‘wires tapped’ in Trump Tower:”

First, to the extent defendants assert President Trump “made up” the tweet,

the statement is not of an concerning plaintiff (Nunes). Second, plaintiff has

not alleged that the statement is false. Third, even if the statement is factually inaccurate, the statement that plaintiff’s theory about surveillance of the Trump campaign “began” with President Trump’s tweet is not defamatory.

Other Political Cases

Sarah Palin, John McCain’s vice-presidential running mate in 2008, sued The New York Times for defamation, claiming that a 2017 editorial maliciously associated her with a mass shooting that injured Congresswoman Gabrielle Giffords (D-AZ). A federal judge dismissed her case, but a 3-0 panel of the U.S. Second Circuit Court of Appeals reversed, thus reviving the case (Sarah Palin v. The New York Times).

Besides the characters involved – and the reversal in federal court – this case is interesting because The New York Times published a correction: “An earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.”

To prevail, Palin – a public figure — must show that the newspaper acted with actual malice.

Meanwhile, a former contestant on “The Apprentice,” Summer Zervos sued President Trump in 2017 claiming she was defamed because candidate Trump said her allegations of his sexual misconduct in 2007 were lies. In 2019, a 3-2 majority of a New York State appeals court rejected the argument from Trump’s counsel that a sitting president cannot be sued in state court (Zervos v. Trump).

In addition to its spotlight on the Supremacy Clause, the Zervos lawsuit also examines the boundaries of opinion-as-defense in defamation disputes. Trump’s lawyers argue that his campaign rhetoric and opinions are protected by the First Amendment.

Nicholas Sandmann, a student at Covington Catholic High School in northern Kentucky, alleged that he was defamed by news coverage and social media sharing of accounts of his encounter near the Lincoln Memorial with a Native American activist in early 2019. Sandmann sued The Washington Post for $250 million; NBC and CNN for $275 million each. CNN and The Washington Post settled for undisclosed terms.

Are media rattled by all this litigation? Yes, I think that’s pretty apparent. How could they not be in this anti-press environment? Libel claims are part of a general, overarching criticism of press, reporting the news, and media prerogatives.

From a bottom-line standpoint, media must pay for legal defense. Newspaper publisher McClatchy — a defendant in one of Congressman Devin Nunes’ myriad libel suits — filed for bankruptcy in February. The Poynter Institute for journalism published commentary in 2019 that McClatchy could hire 10 reporters for the money it would spend on the Nunes lawsuit.

A small newspaper in Iowa (Carroll Times Herald) won a libel case but created a GoFundMe appeal in 2019 because the legal defense drained its resources. Response to the solicitation — mainly small donations, from across the country — was impressive.

Most certainly the Sandmann cases have drained considerable resources from some of the most noted media companies in the country as those out-of-court settlements show.

Non-political Cases

We also see a flurry of high-dollar claims not directly related to political speech.

On August 14, the unanimous North Carolina Supreme Court upheld a jury’s libel decision against the Raleigh newspaper (Beth Desmond v. The News & Observer Publishing Company). The Ohio private liberal arts Oberlin College is appealing the whopping $44 million in damages awarded to a local bakery stemming from an alleged shoplifting attempt by three African American students (Gibson’s Bakery v. Oberlin College). Rolling Stone paid dearly for its flawed article about a campus rape at the University of Virginia.

Is libel law likely to change?

Fundamental change is not likely in the near future. Justice Clarence Thomas suggested it’s time for the Supreme Court to examine/roll back the New York Times v. Sullivan standard created in 1964. The premise is that current strict standards intended to protect free speech and free press make it nearly impossible for public figures and public officials to prevail in libel cases.

Justice Thomas’ colleagues on the Court have not publicly joined him in urging review of Sullivan.

Libel cases are percolating in federal and state courts that eventually could ripen for Supreme Court review. The Roberts Court has been protective of speech, including commercial and political speech, such as:

Citizens United v. FEC, 2010 (political contributions)
Snyder v. Phelps, 2010 (picketing at funerals)
Sorrell v. IMS Health, 2011 (data mining, drug marketing)
Reed v. Town of Gilbert, 2015 (sign regulations cannot be based on content)
Matal v. Tam, 2017 (trademarks)

We all can be grateful that American libel law does not mirror British libel law, where the burden of proof is on the defendant rather than the plaintiff. Surely by now we have all seen the clickbait coverage of actor Johnny Depp’s libel case against The Sun (Johnny Depp v. News Group Newspapers) for its 2018 reportage of his contentious divorce, which included a headline calling him a “wife beater.”

American libel law is not British libel law. And we need to keep it that way.

© Aimee Edmondson, PhD

Article by Aimee Edmondson, PhD E.W. Scripps School of Journalism at Ohio University and National Law Review Guest Contributor.

For more on free speech, see the National Law Review Constitutional Law section.

Amrock Lawsuit Spotlights Consequences of Litigious Gamesmanship

Trade Secret Litigation Commentary

On June 3, the Texas Fourth Court of Appeals reversed and remanded the dumbfounding $740 million award in Title Source v. HouseCanary – a welcome development for American innovation and business collaboration. On the back of years-long litigation, a fresh trial of the case can offer important signals for corporations on the risks and rewards of collaboration, as well as deliver much-needed guidance on best practices to navigate already murky trade secret protections.

For the uninitiated, litigation between HouseCanary and Title Source (now Amrock) was borne out of a contract the two companies entered in 2015. The arrangement obligated the delivery of an automated valuation model (AVM) and an app to Title Source at a rate of $5 million per year for HouseCanary’s efforts. Title Source intended to use the software and app as a platform to provide customers the ability to assess property values digitally alongside other services the company offers, like title insurance and closing services. After HouseCanary failed to meet its contractual obligation to deliver a working AVM app, Title Source sued for breach of contract.

HouseCanary then filed a counter claim including allegations that Title Source had misappropriated proprietary information, in this case trade secrets, in an attempt to make an app of its [Title Source’s] own. After a six-week trial that concluded in March 2018, a Texas jury decided in favor of HouseCanary and awarded nearly three-quarters of a billion dollars – one of the largest tort settlements of the year.

Should anyone be keeping score at home, that means the case’s settlement was valued at nearly 150 times the annual payout HouseCanary was to receive from its work with Title Source and dwarfed the firm’s multiple rounds of venture funding by over $600 million. For HouseCanary, litigation proved more profitable than any of its own business ventures, and the settlement certainly outstripped the going market rates on AVMs.

By the conclusion of the original trial, it seemed clear that Title Source had not misappropriated HouseCanary’s trade secrets or proprietary information in building its own app. Further, HouseCanary’s own expert witness testified that there weren’t “any fingerprints, any clues, any reference to any HouseCanary technology” in the app Title Source developed on its own.

Regrettably, the jury’s finding against Title Source was based on inaccurate and incomplete information, unsubstantiated inadmissible character attacks, and back-of-the-napkin math from a questionable damages ‘expert.’ It seemed to be more focused on sticking it to corporate America rather than the actual facts and merits of the case. Not only was the jury gravely mislead, but they also never heard critical information which came to light days after the trial concluded.

Post-trial statements by a former HouseCanary executive turned whistleblower clarified that there was never a “working version” of the app to be delivered to Title Source, and per three more former HouseCanary executives, that the company didn’t have “any IP to steal.” The cogency of HouseCanary’s allegations were further thrown into question when the company, six weeks after the trial’s closure, moved to seal a number of exhibited documents from court record.

As I wrote previously, once the sealing motion was overturned, the documents should “provide another look at the technology in question, which will provide clarity whether there were trade secrets to be stolen.” This is especially important when considered in tandem with the whistleblower testimony.

These and other erroneous inclusions and fatal procedural errors led to a Texas appellate court overturn ing the verdict and ordering a new trial. The ramifications of the decision in the new trial promise to be immense, especially if HouseCanary invokes Texas’ Uniform Trade Secrets Act for a second time. The Act has been adopted by 47 states total, and significantly broadens the implications of this trial for business operations in all kinds of industries by setting precedent for other lawsuits.

Trade secret litigation has increased tremendously in the past decade, with over 2,700 cases since 2009; add on the massive original settlement and the ruling may very well set the tone for the future of trade secret litigation and the standard of intellectual property protections.

Given the new evidence that has emerged since the jury delivered its decision in 2018, the cards certainly appear stacked against HouseCanary successfully duping the retrial jury. There is little doubt that businesses and innovators everywhere will be awaiting the verdict of the Texas court for clarity on trade secret protections and our court system’s tolerance for overwhelmingly apparent legal gamesmanship.

Authored by George Nethercutt of The George Nethercutt Foundation, a guest contributor to the National Law Review.

For more on trade secrets, see the National Law Review Intellectual Property law section.

Reactions to the U.S. Supreme Court’s Rulings in Trump v. Vance & Trump v. Mazars

In Trump v. Vance and Trump v. Mazars the Supreme Court issued opinions in two cases concerning the release of President Trump’s financial records. Reactions to the July 9^th rulings have varied, with opinions differing on whether or not Trump’s reputation and presidency will be significantly impacted by what his financial records may reveal.

Below, we outline the details of each case and the reactions to the Supreme Court’s decisions.

Background Trump v. Vance

In Trump v. Vance, the court stated that Trump had no absolute right to block the Manhattan District attorney’s access to Trump’s financial records for the purposes of a grand jury investigation. The court held in a 7-2 decision that “Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.” The court’s opinion was written by Chief Justice John Roberts for the majority including Justices Ginsburg, Breyer, Sotomayor and Kagan with Justice Kavanaugh filing a concurring opinion joined by Justice Gorsuch, and Justice Thomas and Justice Alito writing separate dissenting opinions.

Trump v. Vance involves a state criminal grand jury subpoena not served on President Trump, but on two banks and an accounting firm that were custodians of the records. The subpoenaed records are for eight years of Trump’s personal and business tax returns and other banking documents in the years leading up to the 2016 election served on behalf of New York District Attorney Cyrus Vance., Jr. Vance’s investigation centered around payments made to two women — Karen McDougal and Stormy Daniels — who alleged they had affairs with Trump before he entered office.

The Supreme Court considered state criminal subpoenas could threaten “the independence and effectiveness” of the president as well as undermining the president’s leadership and reputation, weighing Trump’s circumstances against those in Clinton v. Jones, the 1997 case where President Bill Clinton sought to have a civil suit filed against him by Paula Corbin Jones dismissed on the grounds of presidential immunity, and that the case would be a distraction to his presidency.

Trump argued that the burden state criminal subpoenas would put on his presidency would be even greater than in Clinton because “criminal litigation poses unique burdens on the President’s time and will generate a considerable if not overwhelming degree of mental preoccupation” and would make him a target for harassment.

The Court addressed Trump’s argument, stating that they “rejected a nearly identical argument in Clinton, concluding that the risk posed by harassing civil litigation was not ‘serious’ because federal courts have the tools to deter and dismiss vexatious lawsuits. Harassing state criminal subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive. But here again the law already seeks to protect against such abuse … Grand juries are prohibited from engaging in ‘arbitrary fishing expeditions’ or initiating investigations ‘out of malice or an intent to harass.’”

The Court also considered that Vance is a case addressing state law issues where Clinton was a case addressing federal law issues. Trump argued that the Supremacy Clause gives a sitting president absolute immunity from state criminal proceedings because compliance with subpoenas would impair his performance of his Article II functions. Arguing on behalf of the United States, the Solicitor General claimed state grand jury subpoenas should fulfill a higher need standard. In response, the Court ruled, “A state grand jury subpoena seeking a President’s private papers need not satisfy a heightened need standard … there has been no showing here that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions.”

Notably, the Supreme Court decision does not allow for public access to Trump’s tax returns; they will be part of a Grand Jury investigation, which is confidential. However, many took away the message that the majority’s decision–bolstered by Gorsuch and Kavanaugh, Trump appointees, who concurred–that the law applies to everyone.

Reactions to SCOTUS Decision from Jay Sekulow and Cyrus Vance, Jr.

Both Vance and Trump’s attorney Jay Sekulow expressed they were content with the Court’s ruling, albeit for different reasons.

“We are pleased that in the decisions issued today, the Supreme Court has temporarily blocked both Congress and New York prosecutors from obtaining the President’s financial records. We will now proceed to raise additional Constitutional and legal issues in the lower courts,” Sekulow tweeted.

We are pleased that in the decisions issued today, the Supreme Court has temporarily blocked both Congress and New York prosecutors from obtaining the President’s financial records. We will now proceed to raise additional Constitutional and legal issues in the lower courts.

— Jay Sekulow (@JaySekulow) July 9, 2020

“This is a tremendous victory for our nation’s system of justice and its founding principle that no one – not even a president – is above the law. Our investigation, which was delayed for almost a year by this lawsuit, will resume, guided as always by the grand jury’s solemn obligation to follow the law and the facts, wherever they may lead,” Vance said in a statement.

**Other Reactions to the Supreme Court’s Trump v. Vance Ruling**

Following the Supreme Court’s arguments in Vance, lawyers and legal scholars commented about what the decision could mean for the presidency.

In a C-SPAN interview with National Constitution Center President and CEO Jeffrey Rosen, Columbia Law School Professor Gillian Metzger spoke about the issue of burden on the president in Vance, “A lot of what is being shown in these cases is who bears the burden when. Clinton v. Jones said that first, you have to show the burden on the presidency…already the Solicitor General is trying to move us beyond where we had been in Clinton vs. Jones. Among the justices on the court, my sense is that they are really trying to figure out what the standards should be…I didn’t get the sense of a stark ideological divide on this.”

In agreement with seeing the ruling as a victory for the rule of law, David Cole, the ACLU National Legal Director said: “The Supreme Court today confirmed that the president is not above the law. The court ruled that President Trump must follow the law, like the rest of us. And that includes responding to subpoenas for his tax records.”

Harvard Law professor Laurence Tribe, a frequent Trump critic, highlighted the victory on Twitter, saying: “No absolute immunity from state and local grand jury subpoenas for Trump’s financial records to investigate his crimes as a private citizen. Being president doesn’t confer the kind of categorical shield Trump claimed.”

Of a practical matter, though, Mark Zaid, the Washington attorney who represented the whistleblower who set the stage for Trump’s impeachment proceedings, tweeted:

Even if Trump’s tax returns reveal fraud, I find it doubtful that this fact would finally be straw that broke his supporters’ back on election day.

But importance of ruling is that criminal investigation continues & will exist past expiration of Trump’s presidential immunity. https://t.co/dn3GIJ9CRj

— Mark S. Zaid (@MarkSZaidEsq) July 9, 2020

“Even if Trump’s tax returns reveal fraud, I find it doubtful that this fact would finally be straw that broke his supporters’ back on election day. But importance of ruling is that criminal investigation continues & will exist past expiration of Trump’s presidential immunity.” (Should we embed the tweet?)

Background for the Supreme Court’s Ruling in Trump v. Mazars

The Supreme Court remanded back to the lower courts the second case, Trump v. Mazars in a 7-2 decision. The Mazars case involved three committees of the U. S. House of Representatives attempting to secure Trump’s financial documents, and the financial documents of his children and affiliated businesses for investigative purposes. Each of the committees sought overlapping sets of financial documents, supplying different justifications for the requests, explaining that the information would help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections.

Additionally, the President in his personal capacity, along with his children and affiliated businesses—contested subpoenas issued by the House Financial Services and Intelligence Committees in the Southern District of New York. Trump and the other petitioners argued in the United States Court of Appeals for the Second Circuit that the subpoenas violated separation of powers. The President did not, however, argue that any of the requested records were protected by executive privilege. Justice Roberts wrote the majority opinion, with Thomas and Alito filing dissenting opinions.

In Mazars, the District Court for the District of Columbia upheld the Congressional subpoenas, indicating the investigations served a “legislative purpose” as they could provide insight on reforming presidential candidate’s financial disclosure requirements. However, Roberts writes: “the courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information.”

In the opinion, Roberts sets out a list of items the lower courts need to consider involving Congress’s powers of investigation and subpoena, noting that previously these disagreements had been settled via arbitration, and not litigation. Additionally, Roberts summarizes the argument before the court, drawing on the Watergate era Senate Select Committee D. C. Circuit made by the President and the Solicitor General, saying the House must demonstrate the information sought is “demonstrably critical” to its legislative purpose did not apply here. Roberts, stated that this standard applies to Executive privilege, which, while crucial, does not extend to “nonprivileged, private information.” He writes: “We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations.”

However, Roberts detailed that earlier legal analysis ignored the “significant separation of powers issues raised by congressional subpoenas” and that congressional subpoenas “for the President’s information unavoidably pit the political branches against one another.” With these constraints in mind, Roberts charged the lower court to consider the following in regards to congressional investigations and subpoenas:

Does the legislative purpose warrant the involvement of the President and his papers?
Is the subpoena appropriately narrow to accomplish the congressional objective?
Does the evidence requested by Congress in the subpoena further a valid legislative aim?
Is the burden on the president justified?

Reactions to Trump v. Mazars

Nikolas Bowie, an assistant Harvard Law Professor, turning to Robert’s analysis in the opinion on Congressional investigations opinion discussing Congressional investigations indicated the decision “introduces new limits on Congress’s power to obtain the information that it needs to legislate effectively on behalf of the American people . . . the Supreme Court authorized federal courts to block future subpoenas using a balancing test that weighs ‘the asserted legislative purpose’ of the subpoenas against amorphous burdens they might impose on the President.”

Additionally, Bowie points out, “it seems unlikely that the American people will see the information Congress requested until after the November election.”

Writing for the nonprofit public policy organization, The Brookings Institution, Richard Lempert, Eric Stein Distinguished University Professor of Law and Sociology Emeritus at the University of Michigan, concurs with Bowie’s point, writing that the Mazars decision may set a new standard for Congressional subpoenas moving forward:

“The genius of Robert’s opinion in Mazars is that while endorsing the longstanding precedent that congressional subpoenas must have a legislative purpose and without repudiating the notion that courts should not render judgments based on motives they impute to Congress, the opinion lays down principles which form a more or less objective test for determining whether material Congress seeks from a president is essential to a legislative task Congress is engaged in … Congress should be able to spell out in a subpoena why it needs the documents it seeks.”

Looking Ahead to What’s Next

There is a lot of information in these decisions to unpack, especially in relation to Congressional investigations and subpoenas. Additionally, questions remain on how the lower courts may interpret Roberts’ directive to examine “congressional legislative purpose and whether it rises to the step of involving the President’s documents” and how Congress will “assess the burdens imposed on the President by a subpoena.”

ARTICLE BY Rachel Popa, Eilene Spear and Jennifer Schaller at The National Law Review / The National Law Forum LLC.

For more on this case, see the National Law Review Litigation and Trial Practice type-of-law section.

IMS Insights Podcast: Episode 18-Tips From the “Hot Seat” for Remote Hearings and Court Events Amid the Pandemic

In this episode of the IMS Insights Podcast, we speak with trial presentation advisor Jeff Dahm about his perspective as a hot seat operator and his role during the COVID-19 pandemic.

Teresa Barber: So, Jeff, tell me, we’re in a really interesting time and you mentioned this just a couple of moments ago that so many people are in very new environments. We’re having very high stakes meetings and events but in a totally virtual environment and you were talking about other folks in the industry who have those hot seat trial presentation skills for attorneys, for clients, what should they be … I mean are there things that a traditional trial presentation consultant could do right now that can help attorneys feel a little more confident, a little more prepared when they’re going into those virtual meetings, virtual events?

Jeff Dahm: Sure, sure. Trial presentation consultants are quite familiar with the way the video conferencing software works. Call them up, have them assist you in the video conferencing platform. Have them help you make sure that everything works. Schedule a Zoom meeting with your trial presentation consultant to run through a program, make sure it looks good on the other end. Hire them, send them the PowerPoint, run the PowerPoint and you watch it click through, so you can see what the client … What the judge is going to see, what the other opposing counsel is going to see. Just like in a war room, you do run throughs, run throughs and run throughs but good attorneys that know what it’s about, practice because they look effortless in court because they practice and you should do the same thing with your consultant if you have an online hearing. Practice.

Dahm: I mean you would need to practice in person, you’re going to want to practice with an online hearing. It’s very important. So, they can help you with that. Make sure that if you want to show something in OnCue or Trial Director, make sure that the documents come up right. Make sure the video looks good. If you have to show video clips in your hearing, the trial presentation consultant can help you edit those clips, get them together, organize them. I mean there’s a lot of stuff that happens in trial that’s technical that doesn’t actually happen in the trial. It happens before the trial and you still have those things that are going to have to happen and the trial presentation consultant can help you with those.

Barber: Nice. Yeah, interesting. Yeah, and I would imagine, let’s say we’re in a virtual environment or a virtual hearing that stuff is very visible, right? If there’s a glitch in something.

Dahm: Yeah, you’ve got to be smooth. There’s little things like when you press … When you start the PowerPoint, that you don’t have the speaker view on the screen, you have to switch. I mean there’s a seamless operation that a good trial tech does in court and the same seamless operation can happen in the online hearing and it’s the same sort of method to keep things running smooth just like you do in a courtroom.

Barber: Yup, very interesting. So, without disclosing anything confidential, you’ve had a very lengthy career, Jeff, a lot of interesting trials, a lot of interesting moments. Without disclosing anything confidential, could you share maybe a moment where you would be especially proud of what you were able to contribute and the outcomes that you were able to bring?

Dahm: Sure, sure. So, I would say, I think about all of these years I’ve been doing this and the moments that stand out and for me, in a court … I mean I have some pretty dramatic, crazy things that have happened but the most effective and the most jaw dropping moments are when you impeach a witness on the stand and when you play a video clip that shows that they contradicted themself on the video, that is truly one of the most effective moments in a trial to win. You have an expert witness up there who’s very cocky, who thinks they know everything and thinks they read their deposition and has everything right and they put their story wrong together and as a trial presentation consultant, I have these video clips, impeachment clips lined up, ready to go and for me, it’s the most important part of my job and I instill this in all of my trial techs is that you need to make sure you bring up that impeachment clip fast in order for the effectiveness of it and it’s crucial.

Dahm: If a witness is on the stand and they say X and I have a video clip that says Y and my client asks for it, boom, it’s got to come up in seconds to get the effective … And if you do that, you really do have the best chance of discrediting a witness you really want to. I mean it’s not pleasant always, it’s a little uncomfortable at times but it’s the most effective moment in a trial, I believe.

Dahm: I also have a couple of random little stories of things that have happened to me.

Barber: Yeah, I was going to ask you, 23 years sitting in court, in trials, you’ve spent more time in courtrooms than most attorneys would have, and you’ve got to have some stories. Are there any moments that standout to you?

Dahm: There are a couple of them here. So, I was involved in this case in like 2001, 2002, early on in my career. It was a dog mauling in San Francisco, and there was a woman who was mauled. It was a terrible, terrible story and we worked with the district attorney’s office to help prosecute these people that have these dogs and so I was in the courtroom. The trial was on Court TV. It was like a big case and then the defense counsel gets up and she stands up and she gets on the floor and starts barking like a dog, in the middle of the courtroom, and the whole place is like going crazy barking like a dog. Okay, so I do my presentation and my mother was watching at home and I talked to her afterwards and she said, “Now, I finally understand what you do for a living.” She couldn’t get it before.

Dahm: I’m like, “Yeah, I go into court, help display evidence.” But she saw me on TV. She saw the attorney barking like a dog and she’s like, “Now, I kind of get what you do.”

Barber: Oh, my goodness.

Dahm: Another big moment for me was I did a trial for a Pueblo in New Mexico to try and get land back from the government under aboriginal Indian title. It was a truly amazing case and it was incredible and one of the witnesses was one of the medicine men from the Pueblo and he got up on the stand and he led the whole entire congregation in the courtroom in a prayer and they were all in a chanting prayer and it was so overwhelmingly amazing and beautiful and I couldn’t believe that I got to be a part of this, sitting in a federal courtroom. It was pretty amazing. And at the end of that trial, they gave me a piece of pottery that they make, the Pueblo makes this pottery, and it’s truly one of my most prized possessions. It was just a fantastic trial. I really enjoyed it.

Barber: Sounds like some moments definitely stay with you.Dahm: Yeah, yeah, but you get the big moments like you get to go to some event. I sat … You get court side at a game as like a thank you, like flying on a plane. You end up in these crazy moments in this job that you don’t even expect and you’re like oh my gosh, this is really happening. I’m just the trial tech but trial tech is a very important part of the whole process, so it’s just been a great 25 years for me. It’s been really good.

Barber: Yeah. It sounds really interesting and I have to say too, you’re working with really impressive attorneys too quite a bit and how clients certainly have to have shaped your mindset, your approach to everything. What role have clients played in how your career’s developed?

Dahm: Yeah, so I started early on in my career working with a firm, Keker, Van Nest & Peters, and they were … I got in on some cases early on and I started working with the whole firm and just there … Seeing their work ethic and their passion for their job and they were all just dynamic people who were so effective in a courtroom and fun people, fun people to be around and so great at their jobs and I saw this early on in my career and I was like I want to be like this.

Dahm: So, I sort of modeled my work ethic and my career path based on the way that this firm has done their work and it’s been a really, really great experience for me working with them and also just learning so much about just the law and being in court and working on a team and working effectively on a team. I mean these are some values that I learned from them that I really, really take that from every part of my life. It’s been really, really great for me. So, I thank them immensely for what they’ve done for me.

Barber: That kind of mindset too makes it a little more … I mean it makes it fun, right? You kind of get that back when you put it into your work.

Dahm: Yeah. It’s been fantastic, yeah.

Barber: We were talking a moment ago about nearly 25 years in the industry working in trials, working as a trial presentation consultant, you’ve seen a lot of trials and certainly, that truth makes it over to clients, to attorneys. Do you ever have clients who stop you during trial or kind of pull you to the side and want your opinion? How does that work?

Dahm: I find that the clients that ask my opinion and the clients that want to know what the trial tech thinks are the clients that tend to win. I mean you have this invaluable resource sitting right there in the courtroom that has sat through a lot of trials. I mean let’s say … I mean I’ve sat through hundreds of them because I’ve been doing this for 25 years but even somebody who’s only done it 10 years, five years, they still have more experience than most attorneys in a courtroom. I wrote an article a few years ago about view from the hot seat, showing what the hot seat operator, the five most important things that a hot seat operator can tell a client to win and I tell you, I stand by those.

Dahm: It’s just you get so much just from sitting in a courtroom and I pay attention. I mean I follow the cases. I mean you have to if you’re going to be helping bringing up evidence because when they turn around and say can you bring up the statute, they don’t always say exhibit 55, you have to know what the statute is. So and they do ask my opinion and I give my opinion quite candidly whenever I am asked because it doesn’t help anybody to not tell the truth in these situations so I just tell it like it is, say you’re not going to win that argument, you need to try this different and they really do appreciate it and then a few clients, it turns into like a half an hour session at the end of every single day of court, “Okay, Jeff, what about this client? What about this witness? What happened here? What do you think with this judge? What about this ruling?” And I give my opinion and trust me, I have them.

Barber: Like a debrief?

Dahm: Yeah, that’s exactly. You sit in court 25 years, you have an opinion on everything that happens in that courtroom and it tends to run … Cases tend to run similar, even though the details are different but the cases generally run at the same flow so I could help with that. I help with the flow. I help with the cadence. I help with the message and making sure they’re getting a clean, simple, effective message to the jury and that’s how you win.

Barber: Right, which yeah, great way to boil it down to the fundamentals too. That’s an interesting segue here because there are attorneys who feel that they’ve kind of got the bases covered. That they have a paralegal who’s really talented who may be able to be the hot seat operator at their trial. Is that an effective strategy most of the time from what you’ve seen?

Dahm: So, no. Well, I shouldn’t say no overall because if you have a case that has 50 exhibits, small case, not much going on in the case, two or three day case and you don’t have any depo, I don’t see any reason why a good paralegal that you trust could run the show. Those are not the cases for trial presentation consultants as much. You have a big case, you have a heavy load, you have a lot of video depositions, you have multiple things to handle, then you’re going to want to have a trial presentation consultant in there because your paralegal’s going to have a lot to do too in a heavy evidence case. They’re going to have a lot of copying, a lot of binders, a lot of things to submit to the court, I mean filings. I mean there’s just so much for the paralegal to do and you can also …

Dahm: The trial presentation consultant becomes a part of your team, so there’s another person that goes in the whole collective group and if the case can afford it, you should always do it because you will find at the end of it that you were like wow, that was amazing because you have this sort of … This like nirvana that happens in court when you call out exhibits and they come on the screen. I’ve heard clients talk about this nirvana and they say it’s like you’re reading my mind but that’s just a good trial tech doing the good job in the courtroom and the paralegal is focused on being a paralegal. All we’re focused on is bringing the stuff up in court and bringing it up fast and effectively and that is hard to do. It may seem easy but it’s not.

Barber: Yeah, and I was going to say it sounds like there’s a level of kind of perspective and expertise that comes to that. You cannot put that kind of responsibility on a paralegal to bring all of that depth of experience of being in … Like you said, you’ve had hundreds of trials, that perspective adds a level of what should really build confidence in the client to be able to trust, to be able to say, “Okay, I’m going to focus on the strategy. I’m going to focus on telling that story and then lean on the expertise and the perspective of Jeff or my trial presentation consultant who’s here with me.”

Dahm: Yeah, it is a luxury. I mean it can be a luxury if you don’t have the means but if you do have the means, it’s a necessity because it makes your case run smoother and you … Everything that gets on that screen, I mean just think about this, every single thing you put on the screen is so important. It is so important to the end result of the case, what goes on that screen and someone who has the experience to put it on the screen in an effective manner is going to make you win your case. I mean it’s just that simple. I mean not always but it definitely helps. If jurors can see the way it looks and it looks pretty and it looks good and it’s easy to adopt, they’re going to adopt it.

Barber: Mm-hmm (affirmative).

Dahm: So, it’s interesting.

Barber: What I want to ask you too, we’re starting to see some courts reopening but even … And businesses reopening and some restrictions kind of easing related to the pandemic but even with a lot of restrictions lifting and some courts starting to move forward with physical schedules, we’re going to have people who aren’t able to travel. So, when we think about witnesses, we’re going to see witnesses unable to travel. How do you think courts are going to handle that and what advice would you have for attorneys right now?

Dahm: Sure. So, I’ve dealt with this issue for years. I’ve dealt with it at least a few times a year for years and so what happens is you have a witness that can’t travel and they want to remotely testify and so they call me and they say how can we have a witness testify remote? So, I go through the whole thing, explaining how we can put … Have a camera where they’re at, you have a camera in the courtroom … You put the signal into a projector in the courtroom. You can display the person live and you can put documents next to it. So, I have figured out logistics to get this done and then almost every single time, when they propose it to the judge, the judge says no, they have to testify, they have to come or you play a deposition. That’s going to change.

Dahm: So, now, all this preparation that I have done over the years to figure out how to get a live feed in the courtroom and how to show exhibits while it’s going on the screen, all that work is done. I have it ready to go. So, if a client calls me and they need to have a witness testify remote, we are ready to go.

Barber: Yeah, definitely interesting. It certainly makes you wonder how much of the historical cultural hesitance we’ve had about virtual versus in-person that I think COVID, if nothing else, may be wearing some of that down.

Dahm: And with all the testing I’ve done, with all the software, I’ve tested OnCue, I’ve tested Trial Director, I’ve tested PowerPoint. I’ve tested anything you would want to just use to display in a courtroom and it all works online. It all works in the virtual hearing and you should be using it because the case is just as important even though you’re not there. We could have a witness testifying remote. I mean there’s really no limits, I don’t think, at this point. With all of our years of using video conferencing software in my industry and then now we have to apply it to trial tech and trial presentation, bring it on because we are ready to go.

Barber: Yeah, very interesting, Jeff.

Dahm: It’s exciting too. It’s really exciting for me too because it’s like I have such a passion for trial presentation and then to be able to do it in a new method, in a new platform, in a new way is just so exciting because it’s like I feel very comfortable online and I know my techs do too, feel very comfortable in the Zoom meeting or a Skype call. I can share screens, switch back and forth, I mean it’s not hard for me because that’s what I’ve done in the courtroom for 25 years. So, I’m really excited to be able to do all of this stuff and I’m sitting at home now. It’s just, it’s great for me. So just got to have people realize that it is as important as it was.

Barber: Yeah, and reach out for help, right? Because I think not everyone shares your sense of comfort with it and I think that it’s just kind of interesting to make those connections that I think there are attorneys who could use some help right now just to get that confidence in this weird new normal of the remote world.

Barber: So, Jeff, it’s been really interesting having you on today. Wonderful to hear your really interesting perspective about the current situation and also just learn as little bit more about what you’re bringing to the table and your background.

Dahm: Great, yeah. Thanks for having me, Teresa. Yeah, this has been really fascinating. I just love explaining how trial presentation works and what we can do and it’s just … As I said, it’s my passion and I just enjoy talking about it, so I could talk about it with you for another couple of hours. It’s just …

Barber: Well, we may take you up on that, Jeff. So, we’ll have you back sometime soon. So thank you. I really appreciate it. Thanks, Jeff.

Dahm: Thanks, Teresa.

ARTICLE BY IMS ExpertServices.

For more on trials amid the pandemic, see the National Law Review Litigation / Trial Practice section.

When in Doubt, Cross-Appeal!

The Law Court recently addressed an issue of great importance to appellate practitioners: does a party need to cross-appeal a favorable judgment in order to preserve an argument providing alternate grounds for affirmance, when the lower court rejected that argument? The answer, per the Law Court’s decision, is “yes.” As the Law Court’s decision makes clear, and as my predecessor on this blog has noted, a cross-appeal is the only way to ensure that you will be able to raise the argument on appeal.

The decision, Reed v. Secretary of State, which is also very interesting substantively, involved a challenge to the Secretary of State’s determination that proponents of a citizen initiative had gathered enough signatures to place the initiative on the ballot. The petitioner’s challenge required the Superior Court to interpret statutes, 21-A M.R.S. § 903-E and 4 M.R.S. § 954-A, regulating the activities of notaries. Intervenors in the action argued in the Superior Court that the statutes were unconstitutional. The Superior Court declined to reach that argument, instead ruling in favor of the intervenors on other grounds.

Intervenors did not cross-appeal after the petitioner filed a notice of appeal. Instead, in the Law Court, intervenors argued that the statute was unconstitutional as an alternate grounds for affirmance.

The Law Court did not address intervenors’ argument. Instead, it wrote in a footnote:

We have no reason to address the constitutionality of [Section 903-E or Section 954-A] because . . . none of the parties who appealed from the Secretary of State’s decision ended up arguing that either provision is unconstitutional.

(emphasis added).

The take-away? If the trial court rules against you on any argument you make, cross-appeal if you want to raise that argument before the Law Court!

This is to some degree a peculiarity of Maine courts. Generally, you can raise any argument you want on appeal to sustain a judgment in your favor. The key to determining whether to cross-appeal is usually whether you want a part of the judgment changed. But the Law Court takes a different view. There is some question about whether this is the right rule – after all, usually there is no standing to appeal unless you have been adversely impacted by the judgment. But it is the rule.

ARTICLE BY Joshua D. Dunlap at Pierce Atwood LLP.

For more on legal appeals, see the National Law Review Civil Procedure section.

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Background

General Court

Takeaway points

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The Conflict Between the MDL Court’s Authority to Manage Pretrial Proceedings and Rule 45’s “Where Compliance Is Required” Requirement.

Who Has Jurisdiction Over Extra-District Nonparty Subpoenas?

Leading Decisions Hold that MDL Courts Have Broad Authority to Enforce Extra-District Subpoenas Under Section 1407

Courts Have Expressed Conflicting Views on Whether an MDL Court Can Enforce an Extra-District Subpoena Duces Tecum

A Motion to Transfer to the MDL Is a Viable Alternative

Conclusion

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Historical Context

Trump’s Track Record

Judicial Nominations

Other Political Cases

Non-political Cases

Is libel law likely to change?

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Background Trump v. Vance

Reactions to SCOTUS Decision from Jay Sekulow and Cyrus Vance, Jr.

Other Reactions to the Supreme Court’s Trump v. Vance Ruling

Background for the Supreme Court’s Ruling in Trump v. Mazars

Reactions to Trump v. Mazars

Looking Ahead to What’s Next

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**Other Reactions to the Supreme Court’s Trump v. Vance Ruling**