Three Indiana judges were found to have engaged in judicial misconduct and in “an injudicious manner” that included fisticuffs and gunfire in a restaurant’s parking lot in downtown Indianapolis, CNN reports.

The incident led to the judges’ being temporarily suspended without pay by the Indiana Supreme Court.

It all started hours before the three were to attend an educational conference in Indianapolis. They went out drinking for a few hours and decided to walk to a strip joint but found it to be closed, so they went to a White Castle. In the parking lot there, they became involved in a fracas with two men.

Two of the judges were shot and required emergency surgeries.

The three are Andrew Adams of the Clark Circuit Court 1, Bradley B. Jacobs of the Clark Circuit Court 2 and Sabrina R. Bell of the Crawford Circuit Court.

Read the CNN article.

The public impeachment inquiry hearings set to begin Wednesday will pit a Democratic attorney who built his reputation as a federal mob and securities fraud prosecutor against a GOP House Oversight investigator who helped steer some of the most notable probes of the Obama administration, the Associated Press reports.

For the Democrats, Daniel Goldman will lead the questioning of witnesses. The Washington Post reports that Goldman “made his bones as a prosecutor by sending mobsters, stock swindlers and a multimillion-dollar insider trader to prison, cases in which colleagues said he mixed brains and ‘swagger’ to win convictions.”

Steve Castor, House Intelligence Committee counsel for the minority, will ask questions on behalf of the GOP. “Castor was brought over from the House Oversight Committee by Rep. Jim Jordan, R-Ohio, who recently joined the Intelligence Committee,” reports Fox News.

Read the AP article.

The Supreme Court on Tuesday appeared likely to side with the Trump administration in its effort to end a program that lets nearly 700,000 young, undocumented immigrants live and work in the USA without fear of deportation, according to a USA Today report.

Several conservative justices noted the Department of Homeland Security laid out several reasons for its decision to rescind the Deferred Action for Childhood Arrivals, or DACA, program.

The court’s four liberal justices argued that the decision to end DACA should rise or fall on the administration’s tenuous claim that it was illegal.

“Chief Justice John Roberts looked to be the key vote, as he was in June when he voted with the court’s four liberal justices to strike down the Trump administration’s effort to add a citizenship question to the 2020 census,” USA Today‘s Richard Wolf writes.

Read the USA Today article.

By Eric P. Carnevale and Thomas M. Sullivan
Lando & Anastasi, LLP

In Arthrex v. Smith & Nephew, Inc., issued October 31, 2019, a panel of the U.S. Court of Appeals for the Federal Circuit held that the appointment of Administrative Patent Judges, charged with presiding over proceedings before the Patent Trial and Appeal Board, was unconstitutional. While this decision will require fundamental changes the way APJs may be removed from office, similar cases in recent years suggest that the changes need not significantly disrupt the business of the PTAB.

Arthrex is the owner of a patent that was challenged in inter partes review by Smith & Nephew, Inc. and Arthrocare Corp. Review was instituted, and a panel of three APJs issued a final written decision finding the challenged claims to be unpatentable as anticipated by the prior art. On appeal, Arthrex challenged the appointment of the APJs as violating of the Appointments Clause of Article II of the U.S. Constitution.

Under the Appointments Clause, officers of the United States must be nominated by the president and confirmed by the Senate. However, the Constitution also provides for the appointment of inferior officers by the President alone or the heads of departments. The distinction between officers and inferior officers implicates important considerations related to the separation of powers. It ensures that individuals vested with significant amounts of governmental authority wield that authority with the consent and supervision of officials answerable to the electorate.

The Constitution does not define the differences between principal officers and inferior officers. Thus, it has been left to the courts flesh out those distinctions. Courts look beyond the nominal rank of the officer, and attempt to discern the extent of direction and control appointed officials have over the challenged officer or employee. One non-exclusive test applied by the courts considers (1) whether an appointed official has the power to review and reverse the officers’ decision; (2) the level of supervision and oversight an elected official has over the officers; and (3) the appointed official’s power to remove the officers.

Upon review, the Federal Circuit determined that Administrative Patent Judges were principal officers, not inferior officers, and that their appointment violated the Appointments Clause. APJs have authority to review and, in the appropriate circumstances, revoke patent rights, without having those decisions reviewed by any principal officer. Moreover, the Director of the U.S. Patent & Trademark Office has only a limited ability to remove APJs, on the ground of misconduct that has an adverse effect on the Patent Office.

The Federal Circuit’s solution was to sever the portion of the Patent Act giving APJs protection from removal. The Court reasoned that even if the director still lacked authority to review the decisions of APJs, the right to remove APJs without cause would provide significant restraint on their decision making, commensurate with the level of authority given to inferior officers.

The Federal Circuit’s decision is not without precedent, and that history suggests Arthrex need not have significant immediate effects on the administration of the PTAB. In the 2018 case Lucia v. SEC, the Supreme Court considered a similar challenge to the appointment of SEC Administrative Law Judges who, at the time, were appointed by SEC staff members rather than the SEC as the head of a department. The Supreme Court held that the ALJs were officers and not mere employees, and therefore their appointment by SEC staff was unconstitutional. But before the Supreme Court’s opinion had even issued, the SEC issued an order in its capacity as the head of a department, ratifying the appointments of all current ALJs as would be required of inferior officers. The Patent Office could similarly ratify the appointment of its APJs to avoid disruption.

The limitations against removing ALJs in the Lucia case were intended to safeguard the judges’ independent decision making from undue influence by political appointees. That was considered especially important where the judges were adjudicating matters in which the agency that employed them was a party. The protection from removal sought to ameliorate the perceived evils of comingling the adjudicative and prosecutorial functions of an agency. Similar considerations of independent adjudication underly the removal protections for APJs severed by the Federal Circuit. But it is unclear whether the consequences of any perceived diminished independence of APJs is more than speculative.

In the near term, the Patent Office will likely have to consider procedures for resolving further challenges to Board decisions under the Appointments Clause. Under the Federal Circuit’s ruling, any decisions issued by unconstitutionally appointed APJs are open to challenge, if the issue is timely raised on appeal. This decision could affect any decisions in IPRs, post grant reviews, covered business method patent reviews and ex parte patent prosecution that are now on appeal, or that may be appealed, that were recently decided by a panel of the PTAB comprising unconstitutionally appointed APJs. Arthrex’s case will be remanded to a new panel of constitutionally appointed APJs, and a new hearing will be granted.

Thomas M. Sullivan is a partner at intellectual property law firm, Lando & Anastasi, LLP. He can be reached at TSullivan@LALaw.com or 617-395-7024. Eric P. Carnevale is an association at Lando & Anastasi, LLP. He can be reached at ECarnevale@LALaw.com or 617-395-7045.

A U.S. appeals court ruled Thursday that judges on a patent review panel were unconstitutionally appointed, casting a cloud over some of its work, according to a Bloomberg report.

The court ordered a new hearing before different judges at the U.S. Patent and Trademark Office’s review board in a dispute over a surgical device. The court suggested other pending patent challenges may suffer the same fate, report Bloomberg’s Susan Decker and Greg Stohr.

“The Court of Appeals for the Federal Circuit said that, under a 2011 law that created the reviews before the panel, called the Patent Trial and Appeal Board, judges had so much authority they should have been appointed by the president and confirmed by the Senate.”

Read the Bloomberg article.

Image by William Munoz

Former secretary of state Rex Tillerson is again at the center of the climate change debate, as the former Exxon Mobil CEO prepares to take the witness stand regarding allegations his former company deceived shareholders about the financial risks posed by climate change, reports the Houston Chronicle.

Tillerson is scheduled to make an appearance at the New York Supreme Court Wednesday to answer questions about missing emails and varying carbon pricing schemes amid a growing wave of climate change litigation against the oil industry, according to the Chronicle‘s James Osborne.

The New York attorney general wants to answer the question of whether Exxon defrauded investors when it used one carbon price to estimate the potential taxes or fees the company might have to pay on greenhouse gas emissions from oil drilling projects and another in the economic modeling it presented to investors regarding future oil and gas demand.

Read the Houston Chronicle article.

Bankrupt coal company Blackjewel has agreed to pay roughly $5.1 million to cover back wages of more than 1,000 its Kentucky, Virginia and West Virginia miners, reports The New York Times.

For two months this summer, out-of-work miners blocked a train full of coal from shipping out of an eastern Kentucky mine, demanding weeks of unpaid wages after their employer went bankrupt and shut down operations in the middle of an afternoon shift, writes the Times‘ Mihir Zaveri.

The company did not file a mandatory 60-day advance warning and did not post a bond, required by Kentucky law, to cover payroll. And workers did not receive pay for their last week on the job. Paychecks for two previous weeks bounced.

Read the  NY Times article.

A recent case decided in the Court of Federal Claims serves as a stark reminder that any time a contract with the Federal government is amended or modified, the parties must pay particular attention to any release language contained in the amendment, or they run the risk of releasing potential claims that are unrelated to the modification, according to the Murtha Cullina Family Business Perspectives blog.

Mark J. Tarallo discusses the case of Meridian Engineering Co. v. US, a dispute a contested release and waiver of payments for the work at issue.

“Any release document (including releases with parties other than the government) should be narrowly drawn and clearly articulate those claims that are being released,” Tarallo advises

Read the article.

The proposed changes to the rules for lawyer advertising in Texas are on track to be submitted for official approval, according to Bruce Vincent, writing on the website of Muse Communications.

The State Bar of Texas’ board of directors will have 120 days to consider the amended rules that are expected to be submitted by the Committee on Disciplinary Rules and Referenda in January.

Some of the new rules cover such topics as the use of trade names for lawyers, claims of legal specialization, the submission of law firm websites for approval, and gifts to nonlawyer referral sources.

Read the article.

A federal judge on Thursday held Education Secretary Betsy DeVos in contempt for violating an order to stop collecting loan payments from former Corinthian Colleges students, according to a Washington Post report.

The Post‘s Danielle Douglas-Gabriel explains:

“Magistrate Judge Sallie Kim of the U.S. District Court in San Francisco slapped the Education Department with a $100,000 fine for violating a preliminary injunction. Money from the fine will be used to compensate the 16,000 people harmed by the federal agency’s actions. Some former students of the defunct for-profit college had their paychecks garnished. Others had their tax refunds seized by the federal government.”

Kim wrote that the defendants violated the preliminary injunction and those violations harmed borrowers.

Read the  Post report.

Chief Justice John Roberts

Senate Majority Leader Mitch McConnell has said that — if President Trump is impeached — he wants the subsequent trial in the Senate to be handled briskly. But the presiding officer at an impeachment will be the chief justice of the United States, John Roberts.

In an essay at Slate, Yale law professor Bruce Ackerman writes: “Given his deep commitment to professionalism, John Roberts can be counted on to deflect any behind-the-scenes pressures for speed. These inclinations would be reinforced, moreover, by the recent controversy surrounding the appointment of Brett Kavanaugh. Everybody remembers McConnell ramming the nomination through without a full investigation of multiple allegations of misconduct; Roberts cannot allow the same hardball tactics to repeat themselves.”

And a handful of skeptical Republican senators may deny McConnell the majority support he would require to force through a revision of the rules that could marginalize the chief justice’s role, Ackerman explains.

Read the Slate article.

José Angel Toledo is the subject of 31 disciplinary complaints filed with the Florida Bar by his clients and a medical provider, according to a petition the Bar filed with the Florida Supreme Court.

“The complaints against José Toledo say he stopped responding to client inquiries and failed to distribute funds in legal settlements,” according to the Tampa Bay Times. “The complaints echo one another, with some clients saying they never received money from settlements and others saying they had trouble getting in touch with him.”

Investigators have been unable to find him, too. His landlord evicted him from his office in September, and a Bar investigator entered the office and found nine filing cabinets and six credenzas filled with clients’ files.

Read the  Tampa Bay Times article.

John Eisenberg, the attorney who is emerging as a central figure in the Ukraine scandal, is a quiet and unassuming presence in a White House dominated by more colorful personalities, according to a Politico report.

“He says little, frequently keeping his head down as he walks the halls of the Eisenhower Executive Office Building,” writes Politico’s Daniel Lippman. “He has few internal enemies. He’s not known to speak to reporters. He keeps such a low profile that, for a while, the president didn’t even know his name, repeatedly referring to him as ‘Mike.’”

One former colleague at the National Security Counsel called him “extremely paranoid,” while another said he never says anything when he can nod his approval and never puts anything in emails if he can say it to your face.

Read the Politico report.

The Associated Press reports that negotiations aimed at reaching a major settlement in the nation’s opioid litigation reached an impasse Friday.

The AP’s Geoff Mulvihill writes that one of the negotiators, North Carolina Attorney General Josh Stein, said late Friday that local governments did not accept a deal worth $48 billion in cash, treatment drugs and services.

“Paul Farrell, a lead lawyer for the local governments, told The Associated Press that one hang-up was the states’ desire to be in charge of dividing the money. They said that the deal would provide free Suboxone, a drug used to treat opioid addiction, across the country,” according to Mulvihill.

Read the AP article.

In his 10 months in the administration, White House counsel Pat Cipollone seems to have earned the president’s trust in a way that few aides have done. He is both discreet, and more to the point, clear in his admiration for the president, according to a report in The Atlantic.

“Cipollone—aggressive, dedicated, and at times controlling, according to his colleagues—has helped to frustrate Democratic attempts at oversight, challenging subpoenas and crafting legal arguments to block aides’ testimony before Congress,” write Peter Nicholas and Elaina Plott.

Above the Law reports that last week Cipollone “wrote an eight-page letter to Congressional Democrats, where he openly mocked the impeachment inquiry against Donald Trump, stating not only that the president could not ‘permit his administration to participate in this partisan inquiry under these circumstances,’ but that it ‘lack[ed] any legitimate constitutional foundation’ and violated ‘the Constitution, the rule of law, and every past precedent.’”

Read the Atlantic article.

Although Purdue Pharma LP is based in Connecticut and incorporated in Delaware, the company at the center of the opioid crisis filed for bankruptcy in New York, in a court where its case would be assigned to the only judge who works there, reports The Washington Post.

Bankruptcy Judge Robert Drain, on the bench since 2002, has long experience with complicated bankruptcy cases. On Friday he heard arguments over whether to take the unusual step of halting action in about 25 lawsuits brought by various states against Purdue and members of the Sackler family, which owns the company.

The Post article quoted Lynn M. LoPucki, a professor at the UCLA School of Law: “Of course Purdue strategically picked White Plains over all other courts. That’s like asking whether a chess master has a strategy or just makes moves randomly.”

According to The New York Times, the judge on Friday cited mounting costs of litigation that are siphoning funds that could otherwise go to abate the opioid crisis and ordered a pause in legal action by states against Purdue Pharma and its owners, the Sacklers.

Read the Post article.

Reuters reports that the Trump administration’s effort to cut red tape and speed up major energy projects has backfired in the case of the three biggest U.S. pipelines now planned or under construction.

Reuters reporters Scott DiSavino and Stephanie Kelly explain:

“The Republican administration tried to accelerate permits for two multi-billion-dollar natural gas lines and jumpstart the long-stalled Keystone XL crude oil pipeline that would start in Canada. Judges halted construction on all three over the past two years, ruling that the administration granted permits without conducting adequate studies or providing enough alternatives to protect endangered species or national forests.”

Read the Reuters article.

Letitia James
Image by Thomas Good

Roughly 40 state attorneys general plan to take part in a New York-led antitrust investigation of Facebook, reflecting a broadening belief among the country’s top Democrats and Republicans that the tech giant may be undermining its social-networking rivals, reports The Washington Post.

New York Attorney General Letitia James first announced a wide-ranging probe with seven other states and the District of Columbia to explore whether, in James’s words at the time, Facebook has “endangered consumer data, reduced the quality of consumers’ choices, or increased the price of advertising,” writes the Post‘s Tony Romm.

Sources told the newspaper that New York continues to solicit support from other states, meaning the number could grow before it is formally announced.

Read the Post article.

Fitch, Even, Tabin & Flannery LLP will present a free webinar, “Patent Prosecution Options at the USPTO: Tried-and-True or New to You,” featuring Fitch Even attorneys Alan E. Schiavelli and George N. Dandalides.

The event will be on Wednesday, Oct. 23, 2019, at 9 am PDT / 10 am MDT / 11 am CDT / 12 noon EDT. It will also be available as an on-demand webinar after the presentation.

The firm said the USPTO is constantly striving to reduce average pendency and achieve compact prosecution office-wide, but that’s of little consequence if your patent application is bogged down in prosecution with the examiner—or if business reasons dictate a patent be obtained more quickly than usual. Fortunately, the USPTO offers several programs and initiatives to applicants designed to advance the examination process.

During this webinar, presenters will provide background information and helpful advice on these prosecution tactics and publication strategies:

• Track One prioritized examination
• Petitions to make special and accelerated examination
• First Action Interview Pilot Program
• Patent Prosecution Highway (PPH)
• Early publication and non-publication
• After Final Consideration Pilot 2.0 (AFCP 2.0)
• Pre-Appeal Brief Conference Pilot Program

Register for the webinar.

Justice Neil Gorsuch

The Supreme Court justices sounded closely split Tuesday and a bit uncertain over whether to make it illegal under federal law for companies and public agencies to fire employees solely because they are gay, lesbian or transgender, with Justice Neil M. Gorsuch likely the deciding vote, according to the Los Angeles Times.

Trump-appointee Gorsuch described the case as “really close…. Assume for the moment I’m with you on the textual evidence,” he told an ACLU lawyer representing a transgender woman who was fired from her job at a funeral home in Detroit.

“The four liberal justices, joined at times by Gorsuch, said they agreed that firing gay or transgender employees was discrimination based on sex as the law defined it,” writes the Times‘ David G. Savage. “But others, including most of the conservatives, said that Congress in 1964 did not mean to outlaw discrimination based on sexual orientation or gender identity.”

Read the  LA Times article.