A U.S. district judge has ordered Pepper Hamilton LLP to turn over materials tied to the law firm’s 2015-16 investigation that led Baylor University regents to report the school had fundamentally failed in its Title IX implementation duties, reports the Waco Tribune-Herald.

“The significance is we are continuing to get to the bottom of who, what, where and when in regard to the failures at Baylor,” said Jim Dunnam, a Waco attorney who represent the 15 plaintiffs.

Plaintiffs’ lawyers had filed for a subpoena in March 2017 seeking materials from Pepper Hamilton and in June filed a motion to compel the firm to comply, but the firm did not respond to the request, according to the Tribune-Herald‘s Phillip Ericksen.

Read the Tribune-Herald article.

The Houston Chronicle reports that the former general counsel of the Houston Housing Authority won $1.87 million in a lawsuit against the agency after she accused it of retaliation.

“Karen Miniex, the former general counsel for the agency, alleged her boss at the housing agency retaliated against her after she investigated fraud in the agency’s voucher program targeted at veterans,” according to the report. “The trial was held before U.S. District Judge Nancy F. Atlas.”

A statement from the agency said an appeal is being considered, should the judge uphold the jury’s verdict.

Read the Houston Chronicle article.

The Russian election interference report by Special Counsel Robert Mueller, still not fully disclosed, is raising a number of questions and also surprised some who practice criminal law, according to a report by Androvett Legal Media & Marketing.

“It is perhaps somewhat surprising that Mr. Mueller didn’t provide a conclusion on the issue of obstruction of justice. Certainly, many Americans were expecting a clear-cut decision,” said Philip Hilder, a former U.S. prosecutor in Houston who now is a white-collar criminal defense lawyer at Hilder & Associates, P.C.

“But proving either conspiracy or obstruction is a difficult challenge. Until the portion of the actual Mueller report is disclosed articulating his rationale, I could only speculate as to why there is no solid conclusion after a two-year investigation.

“Perhaps more surprising is that Attorney General William Barr concluded after only 48 hours of review that the investigation is not sufficient to establish that the president obstructed justice. Assuming the bulk of the report itself is released, a fuller picture will come into focus as to why Mueller demurred and whether Mr. Barr’s conclusion is justified,” said Hilder who has represented whistleblowers and other defendants in high-profile trials.

“As to how much of the report and grand jury testimony should be turned over to Congress, it is reasonable to assume that a large portion is based on grand jury material. A court order is needed to release that information. A blanket release requested by Congress may not be possible, since there may be evidence disclosed that is related to ongoing investigations by other federal prosecutors as well criminal prosecutions already indicted by the Mueller team. Nonetheless, it may take a while until all the grand jury material is scrutinized before its possible release. I would anticipate rolling production, with Congress receiving parts of the report over time.”

The Federal Energy Regulatory Commission is continuing to aggressively investigate and bring enforcement action against companies that engage in energy market manipulation, reports WilmerHale in its 10-in-10 Hot Topics in Energy Series.

These investigations and proceedings mirror Commodity Futures Trading Commission (CFTC) action on financial market manipulation in the energy area.

“As the recent Powhatan and Silkman decisions indicate, the body of case law defining FERC’s enforcement authority continues to develop. Regulated companies should be aware that the statute of limitations in market manipulation cases will likely be read permissively. A strong internal compliance program, coupled with self-reporting in appropriate instances, can help reduce risk,” according to the article’s authors.

Read the article.

A cyberattack on the agency overseeing Boston public defenders has caused a weekslong slowdown, disabling e-mail systems, delaying some hearings, and hanging up payments for the private attorneys who represent clients, reports The Boston Globe.

“The Committee for Public Counsel Services has been cleaning up for two weeks after a ransomware attack locked up its servers, with the culprits demanding that a ransom be paid in bitcoin,” writes the Globe‘s Andy Rosen. “The agency refused to pay, because it has backup files it can use to restore the system.”

A similar attack hit the Jackson County, Georgia, government internal network recently, forcing most of the systems offline, according to ZDNet. In that case, the county paid $400,000 to cyber-criminals week to get rid of the ransomware infection and regain access to its IT systems.

Read the Globe article.

A new Trump administration rule for family-planning grants could trigger a national public health crisis, the American Medical Association and Planned Parenthood said in a lawsuit Tuesday challenging the rule, reports the Associated Press.

In addition to the AMA/Planned Parenthood lawsuit, the rule is being challenged in a lawsuit filed Monday by California officials and another filed Tuesday by officials in 20 other mostly Democratic controlled states.

The Department of Health and Human Services rule would prohibit family planning clinics funded by the federal Title X program from making abortion referrals — a provision that critics denounce as a “gag rule.”

“Pregnancies that are unintended, and thus riskier, will increase. The number of abortions will also increase. And there will be fewer tests for sexually transmitted infections and cancer screens — putting patients and their partners at great health risk,” the lawsuit said.

Read the AP article.

Foley & Lardner LLP announced former U.S. Congressman Michael Capuano has joined the firm’s Government Solutions Practice as a public affairs director, splitting his time between the firm’s Boston and Washington D.C. offices.

He joins Foley’s team of former congressmen, which includes public affairs directors Dennis Cardoza and Scott Klug, both previously members of the U.S. House of Representatives.

Capuano served as the U.S. Representative for Massachusetts’ 7th Congressional District from 1999 to 2019. He was a senior member of the Transportation and Infrastructure Committee and the Financial Services Committee, and chair of the Special Task Force on Ethics Enforcement.

Prior to his congressional career, Capuano was the mayor of Somerville, MA from 1990 to 1999.

The Supreme Court has ruled that the Constitution places limits on the ability of states and localities to take and keep cash, cars, houses and other private property used to commit crimes, reports The New York Times.

Reporters Adam Liptak and Shaila Dewan explains that the practice, known as civil forfeiture, “is a popular way to raise revenue and is easily abused, and it has been the subject of widespread criticism across the political spectrum. The court’s decision will open the door to new legal arguments when the value of the property seized was out of proportion to the crimes involved.”

All nine justices found that the Excessive Fines Clause applies to the states under the 14th Amendment. Justice Ruth Bader Ginsburg wrote that the historical and logical case for the conclusion is overwhelming.

Read the NY Times article.

In two related cases, petitioners are asking the U.S. Supreme Court to strike down state generator subsidies that petitioners argue distort competitive wholesale power markets that are under the exclusive jurisdiction of the Federal Energy Regulatory Commission under the Federal Power Act, reports Verrill Dana in its Energy Law Update.

Associate Brian Marshall of Portland, Maine, explains:

Both cases concern “zero emission credits” (ZEC) schemes, one in Illinois and one in New York, that subsidize nuclear power plants. These ZEC subsidies allow otherwise uncompetitive nuclear plants to stay profitable and continue to operate, even if they fail to receive sufficient compensation in wholesale power auctions. Both the Second and Seventh Circuits have upheld the ZEC nuclear power subsidies.

Read the article.

For the second time in as many weeks, Chief Justice John G. Roberts Jr. has sided with liberal Supreme Court justices to disagree with how lower courts have interpreted Supreme Court precedent, reports The Washington Post.

“On Tuesday, Roberts was pointed in saying the Texas Court of Criminal Appeals has ‘misapplied’ a 2017 ruling that instructed that court to reconsider its analysis of whether death-row inmate Bobby James Moore was intellectually disabled, and thus ineligible for execution.” writes the Post‘s Robert Barnes.

And less than two weeks ago Roberts joined in blocking a Louisiana law that tightened restrictions on abortion providers.

Read the Post article.

President Trump has declared a national emergency to finance the building of a border wall, adding fuel to the controversial issue that closed the federal government for more than three weeks.

In a post on the website of Androvett Legal Media & Marketing, Lynn Pinker Cox & Hurst constitutional law expert David Coale says Trump’s emergency declaration is similar to President Harry Truman’s takeover of the steel industry to avoid a strike during the Korean War by the United Steelworkers of America.

The U.S. Supreme Court rejected the takeover in 1952’s Youngstown Sheet and Tube Co. v. Sawyer decision, largely because the president acted without congressional approval. Today’s situation, where Congress has repeatedly refused to fund the president’s border wall, has strong echoes of the Youngstown case, Coale says.

“As for defense spending, both the House and Senate, have the power to overrule a claim of emergency,” says Coale. “If the president can clear that hurdle, there probably are billions of dollars in ‘undesignated’ defense and homeland security money that he could try to access. But ‘undesignated’ does not mean ‘free to take, no strings attached,’ and defense contractors who expect to get paid from that money will likely sue from all directions, as will private landowners in the way of the wall’s path.”

Virginia Lieutenant Governor Justin Fairfax — accused by two women of sexual assault — faces more than just official scrutiny over the allegations; because he’s a partner in Morrison & Foerster, he’s under investigation by his firm, too.

CNN reports:

“Amid the allegations, Fairfax’s law firm told employees he is taking a leave of absence, according to an internal memo obtained by CNN. The memo states the firm of Morrison & Foerster, of which Fairfax is a partner, has retained outside counsel to conduct an investigation. ‘Justin has agreed to cooperate with the firm’s investigation,’ the memo states.”

Above the Law reports that Fairfax hired Beth Wilkinson of Wilkinson Walsh + Eskovitz after the first allegations of sexual assault surfaced.

Seattle and its insurers have agreed to pay $65.75 million to the family of Brooke Taylor, an amount representing the largest individual personal injury settlement in the city’s history, likely the largest in Washington state and among the largest ever in the country, reports Crosscut.

“The enormous sum is the result of a confluence of circumstances,” explains Crosscut’s David Kroman. “Taylor was 38 at the time of the crash and in the early part of what was an already decorated career with the law firm Susman Godfrey as an intellectual property litigation attorney. When she was still working, she was being showered with praise, and several industry publications had counted her among the country’s best lawyers.”

Taylor has a full-time medical attendant and currently lives in an assisted-care facility near her family’s home.

Read the Crosscut article.

Politico reports that the Justice Department placed an online job posting for a pair of attorneys to tackle border wall litigation in South Texas — a sign of coming property seizures and other legal controversies that President Donald Trump anticipates if he plows ahead with his signature project.

Politico’s Ted Hesson interviewed Chris Rickerd, the American Civil Liberties Union’s senior policy counsel on border and immigration issues, who said the attorneys likely will deal with eminent domain property seizures and quarrels with landowners over what their land is worth.

The two advertised jobs, based in McAllen and Brownsville, will pay between $53,062 and $138,790, according to a posting to a federal jobs website.

Read the Politico article.

Image by U.S. Customs and Border Protection

Government lawyers have taken the first step in trying to seize private property using the power of eminent domain to build a border wall — a contentious step that could put a lengthy legal wrinkle into President Trump’s plans to build hundreds of miles of wall, reports The Washington Post.

Previous eminent domain attempts along the Texas border have led to more than a decade of court battles, some of which date to George W. Bush’s administration and have yet to be resolved, according to the Post‘s Katie Zezima and Mark Berman. Many landowners are vowing to fight anew.

The reporters quoted Gerald S. Dickinson, an assistant professor of law at the University of Pittsburgh, who said this newest fight will be different because the earlier effort mostly included federal government land.

“If it’s going to be a contiguous wall across the entire southwest border, you’re talking about a massive land seizure of private property,” he said.

Read the Post article.

A U.S. judge overseeing a veteran’s multimillion-dollar negligence lawsuit in Puerto Rico rebuked the Justice Department for attempting to use the partial government shutdown to put the case on hold, calling the request “laughable,” according to a Bloomberg Law report.

Bloomberg’s Erik Larson writes: “In a ruling denying the government’s bid for more time, U.S. District Judge William G. Young said lapses in federal appropriations, like the current one triggered by President Donald Trump’s demand for funding for a border wall with Mexico, aren’t a government ‘policy’ that could theoretically justify staying such a lawsuit.”

The judge decried “an abdication by the president and the Congress” of the duty to govern responsibly.

Read the Bloomberg Law report.

Cleveland.com reports that Emily McNeeley, general counsel for Cuyahoga County’s troubled IT Department and one of several people named in subpoenas related to an ongoing corruption investigation, has resigned from her $95,000-a-year job,

The county reported the resignation Tuesday, according to Cleveland.com’s Courtney Astolfi.

McNeeley was placed on unpaid leave in April after corruption investigators repeatedly named her, and her boss, IT Director Scot Rourke, in subpoenas served on the county. The cases refer to potential conflicts of interest, the report says.

Read the Cleveland.com article.

Bloomberg Law reports that companies that turn to the federal courts to resolve fights with rivals and customers may find themselves in limbo if the government shutdown continues beyond next week.

The system can spend money left over from fees and other sources to run through Jan. 11, writes Bloomberg’s Erik Larson.

“After that, nonessential workers at the 94 federal district courts, and at higher courts across the country, may have to stay home even as skeleton crews show up—without pay—to handle matters deemed essential under U.S. law, including many criminal cases,” Larson explains.

Individual courts and judges then will decide how to fulfill those critical functions.

Read the Bloomberg Law article.

Barbara Underwood was an apolitical force in New York, quietly serving as solicitor general before getting an unexpected promotion to become the state’s first female attorney general, writes the Associated Press.

In her eight months in the AG’s role, she sued to put President Donald Trump’s charitable foundation out of business, accusing him of running it as a wing of his private businesses and political campaign. She also used the courts to challenge his administration on a multitude of policy fronts, including opposing its push to add a citizenship question to the 2020 census.

Underwood was appointed attorney general by the state legislature in May after the surprise resignation of Eric Schneiderman, explains AP’s Michael R. Sisak.

Now she’s going back to the solicitor general’s office, but Trump still faces challenges from New York, from the new AG, Letitia James.

Read the AP article.

Justice Brett Kavanaugh

CNN reports that a U.S. judicial council on Tuesday dismissed 83 complaints that had been lodged against new Supreme Court Justice Brett Kavanaugh, arising largely from statements he made during his contentious September confirmation hearings.

“In a 10-page order, the judicial council of a Denver-based US appeals court said the complaints — the first of which were referred to the court by Chief Justice John Roberts on October 10 — could not be acted on because Kavanaugh, as a justice, is no longer covered by the judiciary’s misconduct rules,” explains CNN’s Joan Biskupic.

“The allegations contained in the complaints are serious,” the order noted, “but the Judicial Council is obligated to adhere to the Act. Lacking statutory authority to do anything more, the complaints must be dismissed because an intervening event — Justice Kavanaugh’s confirmation to the Supreme Court — has made the complaints no longer appropriate for consideration under the Act.”

Read the CNN article.