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3. After DC Circuit reinstates fired agency…

Executive Branch

After DC Circuit reinstates fired agency board members, chief justice pauses action

By Debra Cassens Weiss

April 9, 2025, 9:11 am CDT

Updated: Chief Justice John Roberts has temporarily blocked reinstatement of fired board members of two independent agencies after an en banc federal appeals court ruled in their favor Monday.

On Wednesday, Roberts issued an administrative stay that paused reinstatement of Cathy Harris to the Merit Systems Protection Board and Gwynne A. Wilcox to the National Labor Relations Board, Law360 reports.

In its April 7 order, the full U.S. Court of Appeals for the District of Columbia Circuit vacated a three-judge panel decision that allowed Trump to remove Harris and Wilcox.

The NLRB enforces labor laws, while the MSPB considers workplace disputes by federal employees. Boards overseeing the agencies resolve appeals following decisions by administrative law judges.

The D.C. Circuit’s en banc order revived a reinstatement order by U.S. District Judge Beryl Howell of the District of Columbia, Law.com reports.

The en banc court cited a 1935 U.S. Supreme Court decision, Humphrey’s Executor v. United States, and a 1958 Supreme Court decision, Wiener v. United States. Those decisions upheld restrictions on removal of government officials on multimember adjudicatory boards, the appeals court said.

“The Supreme Court’s repeated and recent statements that Humphrey’s Executor and Wiener remain precedential require denying the government’s emergency motions for a stay pending appeal,” the en banc majority said.

Four out of 11 en banc judges dissented.

The case is Trump v. Wilcox.

Updated April 9 at 4:17 p.m. to include information on Chief Justice John Roberts’ administrative stay.

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3. Federal judges end ‘oral-argument affirmative…

Judiciary

Federal judges end ‘oral-argument affirmative action,’ leading Stephen Miller group to declare victory

By Debra Cassens Weiss

March 25, 2024, 3:02 pm CDT

A legal group founded by Stephen Miller, a former senior policy adviser in the Trump White House, has declared victory after two federal judges in Illinois rescinded polices promoting what the group calls “oral-argument affirmative action.”

Chief U.S. District Judge Nancy J. Rosenstengel and Judge Staci M. Yandle of the Southern District of Illinois rescinded their policies after Miller’s conservative group, the America First Legal Foundation, filed a January misconduct complaint with the 7th U.S. Circuit Court of Appeals at Chicago, according to a March 21 memorandum and order by Chief Judge Diane S. Sykes of the 7th Circuit.

U.S. District Judge David W. Dugan, also in the Southern District of Illinois, was also targeted by America First Legal, but he had rescinded the policy in October 2022, Sykes said.

Reuters and Law360 have coverage.

The rescinded policies were intended to encourage “newer, female and minority” attorneys to argue motions. They provided that after a motion is briefed, a party may alert the court that a newer, female or minority attorney will argue the motion if a request for argument is granted. The court would then grant the request if practicable, would strongly consider granting extra time for argument, and would permit more experienced lawyers to assist.

The misconduct complaint had contended that the judges were violating federal judicial conduct rules, violating the equal protection clause of the Fifth Amendment, and discriminating on the basis of race and sex. A conservative second group, Judicial Watch, filed a misconduct complaint in March.

The judges’ revised policies now say oral argument by “relatively inexperienced attorneys” is welcomed or encouraged.

In a March 22 press release, America First Legal called the rescinded policies “an important victory for our Constitution and the rule of law.”

America First Legal has filed more than 100 lawsuits, Equal Employment Opportunities Commission complaints, amicus briefs and other legal demands over the past three years, the New York Times reports in a separate story.

The group has fewer than 10 lawyers, according to the New York Times. Only $1.7 million of its $44 million budget is used to pay lawyers, while $29.6 million is used for promotion and advertising, according to the New York Times.

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3. Lawyer accused of filing class action suit…

Ethics

Lawyer accused of filing class action suit at behest of litigation opponent

By Debra Cassens Weiss

March 11, 2024, 1:10 pm CDT

A California lawyer has been accused of filing a class action lawsuit that had been prepared by a lawyer working for his litigation opponent and then collecting attorney fees when the case settled on terms advantageous to the opponent.

The State Bar of California filed a notice of disciplinary charges against California lawyer Michael Jacob Libman in a March 6 complaint, report Law360 and the Los Angeles Times.

The disciplinary charges allege that Libman was a local counsel in the class action suit ostensibly filed on behalf of name plaintiff Antwon Jones, a utility customer, against the Los Angeles Department of Water & Power. The public utility company provides electricity and water to city residents. The suit was based on billing mistakes that happened after the adoption of a new billing system.

In reality, the Jones suit was prepared by Paul Paradis, one of two lawyers hired by the city to sue PricewaterhouseCoopers, which had configured and implemented the billing system, the ethics charges allege. The $67 million settlement agreement in the Jones suit was also prepared Paradis, according to the ethics charges.

Libman was recruited as a local counsel by Paul Kiesel, the other lawyer hired to sue PricewaterhouseCoopers, the charges say. Paradis recruited an Ohio lawyer to be the lead counsel and reached an agreement for the Ohio lawyer to kick back 20% of his attorney fees to Paradis, the ethics complaint alleges. The Ohio lawyer has since died, according to Law360.

Jones wasn’t aware of the alleged collusion in his suit against the city, and neither was the judge who approved a $1.65 million fee for Libman, the suit says. In his fee request, Libman had falsely claimed to have worked on wage-and-hour class actions in the past, according to the charges.

Libman was ordered in March 2021 to forfeit his attorney fees. Libman did not obey court orders to turn over detailed time records for the case and to answer deposition questions, the ethics charges say. He was found in contempt in August 2023, ordered to pay $1,000 for each act of contempt, and ordered to pay a $700 daily fine until he complies with court orders, the ethics charges say. To date, he has not complied.

The notice of charges alleges moral turpitude, conflicts of interest and failure to obey court orders.

The Los Angeles Times called the ethics charges “the latest twist in a DWP corruption saga that largely centered on the role of the [Los Angeles] city attorney’s office and how its lawyers responded to litigation over a faulty billing system.”

The Los Angeles Department of Water & Power scandal led to guilty pleas by four people, including three city employees, the article says. Libman was not charged in the scheme, but Paradis pleaded guilty to bribery, according to a November 2021 U.S. Department of Justice press release.

Libman’s legal counsel provided a statement on his behalf to Law360.

“I am disappointed that the state bar filed charges against me in this politicized [Los Angeles Department of Water & Power] case driven by vindictive, corrupt and connected lawyers bent on railroading me because I have been exposing their corruption for the past few years,” Libman said.

“If I will get a fair trial that allows me to present all the evidence, I will be fully vindicated and the true scale of the layers of corruption further exposed,” Libman said. “I look forward to the public trial, and I invite members of the media, bench and bar to come watch.”

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3. Federal judges wrongly engaged in ‘oral-argument…

Judiciary

Federal judges wrongly engaged in ‘oral-argument affirmative action,’ group’s misconduct complaint says

By Debra Cassens Weiss

January 29, 2024, 3:15 pm CST

The conservative legal group America First Legal has filed a misconduct complaint against three federal judges in Illinois who issued orders intended to encourage “newer, female and minority attorneys” to argue motions.

The complaint, filed with the Chicago-based 7th U.S. Circuit Court of Appeals, contends the judges are violating federal judicial conduct rules, violating the equal protection clause of the Fifth Amendment, and discriminating on the basis of race and sex, according to a press release. Reuters and Law360 are among the publications with coverage.

The judges, all from the Southern District of Illinois, are Nancy J. Rosenstengel, Staci M. Yandle and David W. Dugan. Rosenstengel is the chief judge.

Their policies provide that, after a motion is briefed, a party may alert the court that a newer, female or minority attorney will argue the motion if a request for argument is granted. The court will then grant the request, if practicable; will strongly consider granting extra time for argument; and will permit more experienced lawyers to assist.

“The judges’ policies are essentially oral-argument affirmative action for lawyers,” the complaint says. The policies violate judicial canons requiring judges to act in a manner that promotes public confidence in the integrity and the impartiality of the judiciary, according to the complaint.

America First Legal has also targeted diversity efforts by corporations and a law review.

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3. Missing faces on Reese’s Halloween candy…

Consumer Law

Missing faces on Reese’s Halloween candy targeted in would-be class action

By Debra Cassens Weiss

January 5, 2024, 8:51 am CST

Reese’s labeling portrays its specially shaped chocolate peanut butter products as pumpkins, ghosts, bats and footballs, but the carved chocolate designs shown on the package are not on the candies, according to a $5 million proposed class action lawsuit.

The Russo Firm filed the Dec. 28 lawsuit in federal court in the Middle District of Florida. It alleges that the “materially inaccurate” product photos violate Florida’s Deceptive and Unfair Trade Practices Act.

Consumers “have been tricked and misled” by the pictures on the product packaging, the suit says, citing and linking to consumer videos posted to YouTube. One reviewer, for example, said she expected the candy to have a jack-o-lantern face, but it actually looked like “a chocolate blob” and “a giant turd.”

Another YouTube reviewer held up the package, along with the actual contents, calling the candy a “monstrosity.” After taking a bite of the candy, he adds, “And the most annoying thing about it is it’s quite nice. It’s a nice peanut butter little chocolate bar snack.”

The suit says Reese’s changed its Halloween-shaped candy packaging two or three years ago. Before the company accurately portrayed the shaped product. But now, the pictures show carvings on the candy “to boost sales and revenues,” the suit alleges.

The Washington Post covered the case and contacted candymaker the Hershey Co. for comment. A spokesperson told the Washington Post that the company doesn’t comment on pending litigation.

The case is Kelly v. the Hershey Co.