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3. Federal judge who sought female attorneys…

Judiciary

Federal judge who sought female attorneys among class counsel has acknowledged sex-bias concerns, order says

By Debra Cassens Weiss

March 25, 2025, 9:21 am CDT

A federal judge who called for female attorneys to be “adequately represented” on the leadership team for plaintiffs in multidistrict contraceptive litigation has “acknowledged the concerns created by her statements,” according to an order closing an ethics inquiry.

U.S. District Judge M. Casey Rodgers of the Northern District of Florida “has taken appropriate voluntary corrective action that acknowledges and remedies the problems created by her statements,” wrote Chief Judge William H. Pryor Jr. of the 11th U.S. Circuit Court of Appeals at Atlanta in the March 20 order.

Conservative activist Mike Davis, the founder of the Article III Project—a conservative group—filed a complaint against Rodgers after she said during a Feb. 21 case management conference and in a Feb. 23 order that she thinks that female attorneys have to be “adequately represented” on the leadership team given the female plaintiffs in the contraceptive drug Depo-Provera litigation.

Davis had released the complaint and his organization, the Article III Project, published online articles about it. He alleged that Rodgers’ statements amounted to discrimination based on sex and constituted judicial misconduct.

Rodgers omitted references to sex when she invited applications for leadership positions in a Feb. 28 order. All applicants would be considered based on merit, she said in the order. Then, in a March 13 hearing allowing nearly 70 applicants to give presentations, Rodgers said she would not give preferences to women to avoid the appearance of impermissible sex discrimination.

Pryor said Rodgers’ voluntary corrective action was sufficient while warning that judges can’t discriminate based on sex when selecting class counsel.

Pryor noted a 2013 statement by U.S. Supreme Court Justice Samuel Alito in a cert denial in which he criticized a judge’s “unique” requirement that class counsel fairly reflect the composition of plaintiffs.

What Alito described as a unique practice “has been touted as a ‘best practice’ in multidistrict litigation,” Pryor said. “Commentators openly encourage judges who preside over these actions to consider impermissible characteristics like sex or race when they appoint leadership counsel.”

Notions about a lawyer’s ability to fairly and adequately represent class interests “must exist within the bounds of the rules that govern judicial conduct, and those bounds prohibit discrimination based on sex,” Pryor said.

Law360 and Reuters are among the publications with coverage of the order, noted by How Appealing.

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3. Law prof suspended over exam question, class…

First Amendment

Law prof suspended over exam question, class discussion can sue for First Amendment retaliation, 7th Circuit says

By Debra Cassens Weiss

March 13, 2025, 2:14 pm CDT

A federal appeals court has revived a First Amendment retaliation claim by a professor at the University of Illinois Chicago School of Law who used an “expurgated racial slur” on an exam question, leading to an investigation, required diversity training, a suspension and denial of a pay raise.

The 7th U.S. Circuit Court of Appeals at Chicago ruled Wednesday in a lawsuit by professor Jason Kilborn, whose 2022 suit was dismissed in December 2023.

His federal suit had alleged retaliation for constitutionally protected speech, due process violations of the 14th Amendment and state law violations.

A university professor’s academic speech is entitled to qualified First Amendment protection under U.S. Supreme Court precedent, the 7th Circuit ruled Wednesday in an opinion by Judge Thomas Lee Kirsch II, an appointee of President Donald Trump during his first term.

“We conclude that Kilborn has plausibly alleged that his speech is constitutionally protected and reverse the dismissal of his claim,” the appeals court said.

Because the appeals court revived the retaliation claim, it also vacated a federal judge’s refusal to exercise supplemental jurisdiction over the state law claims and ordered further consideration.

The university had found that Kilborn violated the harassment section of its nondiscrimination police after an investigation that followed the controversial exam question.

The December 2020 final exam in civil procedure included a hypothetical in which a plaintiff alleged that her managers had called her a “n- – – – -” and a “b- – – -.” Kilborn’s exam included only the first letter of the word followed by underlined blanks. Some students were upset by the question.

The university then investigated allegations that Kilborn created a racially hostile environment for minorities in a class that he taught two semesters earlier by commenting on “cockroaches” and a “public lynching.”

The cockroach comment was part of a discussion on why defendants sometimes settle frivolous cases. The media only covers frivolous cases when the defendant loses, not when the defendant wins, he said. Kilborn said defendants fear that the public will learn about losses in frivolous cases, and “then all the cockroaches come out of the walls, they’re thinking, right?”

In the same discussion, Kilborn said, “I’m not subjecting my corporate bottom line to that public lynching; I’m sorry, that’s not the right word to use.”

In a different discussion on race-based traffic stops, the appeals court said, “Kilborn used an African American Vernacular English (AAVE) accent while repeating the lyrics of a Jay-Z song, which describes the pretextual stop of a young Black man (‘You was doin’ 55 in a 54.’).”

In response, the university refused to give Kilborn an across-the-board 2% merit raise and said he could not return the classroom until he completed an eight-week diversity training program.

Kilborn’s exam question, as well as other remarks investigated by the university, “address matters of public concern, notwithstanding the limited size of Kilborn’s audience,” the 7th Circuit said.

“The exam question was designed to give students experience confronting a highly charged situation that they may encounter in real-life practice and to be a continuation of the learning that occurred in the classroom,” Kirsch wrote. “The content, form and context of the exam question give no indication that it involved a matter of private concern, rather than serving broader pedagogical purposes. Kilborn’s in-class statements performed a similar function. They were designed to engage students and stimulate in-class discussion on topics of significant interest to the broader community, including frivolous litigation and pretextual police stops.”

Hat tip to Law360, which covered the decision.

See also:

UIC law prof must receive online diversity training, coaching before classroom return, letter says

Exam question wasn’t only offensive behavior of UIC law professor, according to internal investigation

Court dismisses part of UIC law prof’s civil rights lawsuit

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3. Jones Day has hired nearly 100 SCOTUS clerks…

Careers

Jones Day has hired nearly 100 SCOTUS clerks in a dozen years; how many are in this year’s class?

By Debra Cassens Weiss

December 12, 2024, 12:43 pm CST

Jones Day has hired 10 former U.S. Supreme Court law clerks from the October 2023 term, adding to an “already-deep bench of talent,” according to Noel Francisco, the partner in charge of the law firm’s Washington, D.C., office and a former U.S. solicitor general.

Jones Day has recruited 96 Supreme Court clerks since the October 2011 term, according to a Dec. 10 press release.

Each of the high court’s conservative justices had employed at least one of Jones Day’s new associates. Justice Brett Kavanaugh employed three of them, while Justice Amy Coney Barrett and Justice Samuel Alito each employed two.

Only about three dozen law clerks work for Supreme Court justices each term, “which means these lawyers—and their unparalleled knowledge of the court—are in incredibly high demand,” the Washington Post reported in January.

Jones Day is “the leader in the race to recruit and hire as many clerks as possible,” the article reported.

What kind of a signing bonus can the former Supreme Court clerks expect? A Gibson, Dunn & Crutcher spokesperson told the Washington Post in January that bonuses have reached a new high of $500,000.

A Jones Day spokesperson did not immediately respond to an ABA Journal request for information on its signing bonuses.

Jones Day hired eight former Supreme Court clerks last year and seven in 2022, the National Law Journal reported in its story on the new associates.

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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. 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.