“H&M will pay $36 million to settle accusations that the fashion retailer illegally kept millions of dollars in gift cards that customers never used, New York Attorney General Letitia James said on Thursday. The Swedish company, whose full name is H&M Hennes & Mauritz AB, will pay $28.26 million to,” reports Nicholas Peck And Thomas Feeney in The Hill.

“There are ways, however, to get to the truth while respecting the court’s singular and delicate ecosystem. Supreme Court Marshal Col. Gail A. Curley has been charged with investigating the leak, and she has an admirable and impressive record of service to our country.”

Read the article.

“A newly proposed law in the South Carolina Statehouse would make it a criminal offense for your employer – or anyone – to ask about your vaccination status. Under the new proposed law, even just asking if someone is vaccinated could be considered a misdemeanor crime. It’s something those who are for it are calling a “don’t ask” bill” reports MATT KAUFAX in Fox Carolina.

“The government has no place in making you or telling you to take the vaccination, or threatening your livelihood if you don’t,” said Upstate representative William “Bill“ Chumley (R, District 35), one of the co-sponsors of the bill. House bill H.4848 now heads to committee after being filed just days ago. It states: “…any representative of a public, private, or nonprofit entity…who inquires about Covid-19 vaccination status…must be fined not more than $14,000 or imprisoned not more than one year.”

Read the article.

“An Ohio judge has been removed from two upcoming criminal trials after a lawyer for the defendants alleged that the judge was failing to implement COVID-19 precautions,” reports Debra Cassens Weiss in ABA Journal’s Daily News.

“Ohio Supreme Court Chief Justice Maureen O’Connor removed Judge Mark Fleegle of Muskingum County, Ohio, from the trials last week.”

“Columbus, Ohio, lawyer Harry Reinhart, 69, had alleged in a November affidavit that Fleegle conducts all hearings in person and does not require facial coverings. Reinhart said he is at higher risk if he contracts COVID-19, and his clients fear that he will be distracted at trial by his own health concerns, O’Connor said in her disqualification order.”

Read the article.

“Former Crestline police chief Joe Butler has been awarded a $380,000 settlement in a lawsuit he filed against the village,” reports Lou Whitmire in Mansfield News Journal.

“In the suit, Butler sought $1.6 million in compensatory and punitive damages, alleging the actions of the defendants were a direct effort to retaliate against him for his effort to expose then-mayor Allen Moore’s racially discriminatory remarks. The suit claimed they did so by attacking Butler’s public reputation, interfering with his public duties and ultimately depriving him of his position and his career in law enforcement.”

Read the article.

“A lawyer representing Jennifer Dulos’ family has filed a federal complaint seeking to require the state Judicial Branch to foreclose on Fotis Dulos’ former Farmington residence even though housing proceedings have been halted due to the coronavirus pandemic,” reports Lisa Backus in Stamford Advocate’s Local News.

“Attorney Richard Weinstein, representing Gloria Farber and the estate of her late husband, Hilliard, wants the proceedings to move forward on the 14,000-square-foot home that was already in foreclosure when Fotis Dulos died Jan. 30 from an apparent suicide.”

“In March, Gov. Ned Lamont issued an executive order, putting a moratorium on foreclosures and evictions as the pandemic spread throughout Connecticut. Weinstein filed the complaint against Judge Patrick Carroll, chief court administrator for the state Judicial Branch, out of ‘sheer frustration,’ the attorney said. ‘Judges are precluded from entering into foreclosures and evictions even in non-COVID-related cases,Weinstein said. ‘My client is paying all this money every month and nothing is happening. I did not want to sue the judge, but every day that goes by, it costs the estate money.'”

Read the article.

“When defending a Lanham Act claim brought by a competitor, the doctrine of unclean hands—the lawyerly version of ‘But they did it too!’—can be a case-dispositive argument. Last month, the Ninth Circuit made it a bit easier to establish this defense, holding that a defendant arguing unclean hands need not prove that the plaintiff’s unclean conduct caused ‘actual harm,'” write Michael Sochynsky and Jonah M. Knobler in Patterson Belknap’s blog.

“The unclean hands defense is based on the equitable maxim that ‘he who comes into equity must come with clean hands.’ … Its roots lie in the English Court of Chancery—a royal ‘court of conscience’ that was able to grant relief in situations where the hidebound courts of law could not. Chancery’s unique focus on conscience and morality meant that plaintiffs seeking its aid were held to a high standard of behavior.”

“Unclean hands remains a viable defense today in the context of equitable claims.”

Read the article.

“Legal marketing is a relatively new concept. It wasn’t until the late 1970s that the ethics rules began to change, thanks to the U.S. Supreme Court’s decision in Bates v. State Bar of Arizona, in which attorney advertising was deemed to be commercially protected speech.” discusses Nicole Black in ABA Journal’s Web First.

“Since then, ethics regulations have been modified to permit attorney advertising, and the vast majority of lawyers now advertise their services in one way or another.”

“With online advertising leading the way, there is an increased need to track and manage legal marketing efforts. That’s where legal client relationship management tools come in.”

“Typically, this software streamlines the lead intake process and then provides tools to manage communications and appointments with potential clients. Other features often included are the ability to run analytics and create reports that provide insight into lead sources and the lead management process.”

Nicole discusses some legal-specific CRM options.

Read the article.

The Consumer and Governmental Affairs Bureau of the Federal Communications Commission (FCC) has ruled faxes sent to “online fax services” are not faxes to “telephone fax machines,” a major victory declaring online fax services outside the scope of statutory provisions within the Telephone Consumer Protection Act of 1991 (TCPA) and the Junk Fax Protection Act of 2005.

In its petition for this declaratory ruling, Amerifactors Financial Group, LLC is represented by RumbergerKirk attorneys Douglas B. Brown and Samantha Duke, along with Steven A. Augustino of Kelley Drye.

A release from the firm outlined the case:

“With the evolution of modern business communications at the forefront of its decision, the FCC’s declaration provides much needed clarification for businesses and consumers who rely on the security of online fax services for sensitive communications that cannot be transmitted by email or other means. Furthermore, the ruling distinguishes online fax services as ‘a cloud-based service consisting of a fax server or similar device’ that allows users to access ‘faxes’ the same way as email and asserts Amerifactors’ arguments that online faxes do not result in the harm that Congress sought to avoid in the TCPA and, among other arguments, ‘would be a first step toward curbing abusive litigation practices.’

“The FCC concludes ‘in short, online fax services differ in critical ways from the traditional faxes sent to telephone facsimile machines Congress addressed in the TCPA’ and refutes commenters suggesting ‘other inconveniences necessitate that all computers and devices being sent faxes be deemed telephone facsimile machines.’ In doing so, the FCC further underscores the ‘more general harms that such commenters point to – such as time spent monitoring unwanted faxes stored by online fax services – are more general harms that go beyond the specific harms Congress identified in enacting the TCPA.’

“This decision of the Bureau has broad implications to all TCPA-fax class actions. First, according to the Hobbs Act, federal district courts are bound to follow the FCC’s rules, regulations, and orders relating to the TCPA. Thus, this declaratory ruling is now the law of the land when it comes to this issue in all district courts in the country.

“Second, this ruling now makes the method by which the fax was received key to determining whether any particular unsolicited facsimile violates the TCPA. This individualized determination will most certainly complicate any attempt to certify a TCPA-fax class action as the question of whether the facsimile was sent to an online fax service will predominate over any common issue.”

Fitch, Even, Tabin & Flannery LLP will present a free webinar, “American Axle: Does Patent Subject Matter Eligibility Depend on Enablement?,” featuring Fitch Even attorneys Stanley A. Schlitter and Andrew C. Wood.

The event will be on Thursday, January 30, 2020, at 9 am PST / 10 am MST / 11 am CST / 12 noon EST. It will also be available as an on-demand webinar after the presentation.

In American Axle & Mfg. Inc. v. Neapco Holdings LLC, the Federal Circuit affirmed a district court ruling that American Axle’s drive shaft patent is ineligible under 35 U.S.C. § 101 because the claims covered an application of a law of nature. American Axle’s petition for rehearing en banc has attracted several amicus briefs, some of which argue that this decision places in jeopardy the validity of many process patents for making physical structures and adds a § 112 enablement requirement to § 101 subject matter eligibility. In general, the decision has created further uncertainty about what a patentee needs to do to meet the requirements of § 101.

During this webinar, the presenters will discuss the following:
• The district court and Federal Circuit decisions in this case
• Arguments presented in the amici briefs
• How American Axle comports with the USPTO’s patent eligibility guidance
• Strategies for litigators and prosecutors regarding Alice in view of American Axle

Register for the webinar.

The U.S. Justice Department says the Equal Rights Amendment can no longer be ratified because its deadline expired decades ago, throwing a barrier in the path of activists who want the amendment enacted if ­Virginia’s new, majority Democratic legislature approves it, reports The Washington Post.

Thirty-eight states are required to pass a constitutional amendment, and only 35 had approved it before the 1979 deadline and a subsequent extension to 1982, explains the Post‘s Patricia Sullivan. Two more states ratified the ERA since 2017, and Virginia would be the 38th.

The ERA Coalition said it “strongly disagrees” with the DOJ’s memo.

Read the Washington Post article.

The University of Phoenix — a for-profit college chain that has been under scrutiny for years — has reached a landmark settlement agreement with the Federal Trade Commission following accusations of unfair and deceptive practices that will result in widespread student loan forgiveness, Forbes reports.

“Too often, students would graduate from the University of Phoenix with dismal career prospects, minimal ongoing support, and a lot of student loan debt that could be impossible to repay,” writes Adams S. Minsky, a Forbes contributor. “The University allegedly specifically targeted people of color and military veterans.”

Under the settlement, the university will pay $191 million, of which $141 million will be used to forgive some student loans for certain borrowers who attended the university.

Read the Forbes 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.

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 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.

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.

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.