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Former Thompson Hine partner won’t have to arbitrate surviving sex bias claims, federal judge rules

homesafetytechpros — Fri, 18 Apr 2025 15:48:39 +0000

Law Firms

Former Thompson Hine partner won’t have to arbitrate surviving sex bias claims, federal judge rules

April 7, 2025, 9:28 am CDT

A federal judge in New York City has refused to dismiss several claims against Thompson Hine in a lawsuit brought by a fired income partner. (Image from Shutterstock)

A federal judge in New York City has refused to dismiss several claims against Thompson Hine in a lawsuit brought by a fired income partner, who alleged that the law firm’s New York office was run “like a toxic boys club locker room.”

In a March 31 opinion, U.S. District Judge Andrew L. Carter Jr. on the Southern District of New York allowed lawyer Rebecca Brazzano’s claims for a hostile work environment, sexual harassment, sex discrimination, retaliation, and aiding and abetting violations of anti-discrimination laws. Some of the claims were brought under New York state law and New York City law, and some were brought under Title VII of the Civil Rights Act.

The tossed claims included defamation, abuse of process, retaliation based on a response to the Equal Employment Opportunity Commission, and negligent infliction of emotional distress. As a result of the dismissals, Ohio partner Thomas Feher, accused of involvement in the EEOC response, is no longer a defendant.

Law360 and Law.com covered the decision.

Carter said the firm could not compel arbitration because the firm’s arbitration clause was invalidated under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. The law applied because Brazzano was fired in April 2022, a month after the law took effect.

The suit had alleged that partner Richard De Palma perpetuated an “old boys’ network” and “horded” incoming work or sent it to male equity partners. He was the New York litigation vice chair at the time of the alleged events; he is now the chair of international arbitration, according to Law.com.

A Thompson Hine spokesperson commented in an email to Law.com.

“We are gratified that the court has agreed with us and taken the first step of dismissing many of Ms. Brazzano’s claims on their face,” the statement said. “We will continue the process of demonstrating, through evidence, that there is no basis for the remainder of Ms. Brazzano’s outlandish allegations, in whichever forum the courts ultimately determine is appropriate.”

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Federal judge’s Columbia clerk boycott didn’t harm public confidence in judiciary, judicial council rules

homesafetytechpros — Sun, 13 Apr 2025 13:28:58 +0000

Judiciary

Federal judge’s Columbia clerk boycott didn’t harm public confidence in judiciary, judicial council rules

By Debra Cassens Weiss

April 10, 2025, 11:36 am CDT

Judge Stephen A. Vaden of the U.S. Court of International Trade responds to a question during a U.S. Senate hearing to examine his nomination to be the deputy secretary of the Department of Agriculture on April 8. (Photo by Mattie Neretin/Sipa USA/Sipa via the Associated Press)

A judge on the U.S. Court of International Trade did not violate ethics rules by refusing to hire law clerks who attended Columbia University, according to the judicial council of the 7th U.S. Circuit Court of Appeals at Chicago.

In an April 8 decision, the council dismissed the complaint against Judge Stephen A. Vaden, one of 13 federal judges who participated in the boycott and explained why in a letter to the school.

Law360, Reuters and the Volokh Conspiracy have coverage.

President Donald Trump has nominated Vaden to be the deputy secretary of the Department of Agriculture, Reuters reports. A U.S. Senate panel had a hearing on his nomination Tuesday.

The judges had refused to hire law clerks who attended Columbia University or Columbia Law School because of the university’s handling of disruptions caused by pro-Palestinian protesters. Columbia has become “an incubator of bigotry,” the judges said in their letter to Columbia, and the judges have lost confidence in the institution.

Vaden’s boycott and his signature on the letter do not harm the integrity of the judicial office, do not harm public confidence in the judiciary, and do not cast doubt on his impartiality, the judicial council said.

“A judge may refuse to hire law clerks from a law school or university that has, in the judge’s view, failed to foster important aspects of higher education, like civility in discourse, respect for freedom of speech and viewpoint nondiscrimination,” the opinion said.

The chief judge of the U.S. Court of International Trade had transferred the ethics complaint against Vaden to the 7th Circuit’s judicial council for review. The person who filed the ethics complaint is in prison for his role in firebombing and vandalizing Jewish synagogues.

Vaden was represented by the First Liberty Institute, a nonprofit conservative legal organization, and Lisa Blatt of Williams & Connolly.

Judicial councils have also tossed ethics complaints against 11 of the other 12 boycotting judges, including, apparently, two federal appeals judges: Judge James C. Ho of the 5th Circuit at New Orleans and, according to Reuters, Judge Elizabeth L. Branch of the 11th Circuit at Atlanta.

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Nearly 30 legal entities may leave Utah’s regulatory sandbox program after state tightens rules

homesafetytechpros — Mon, 24 Mar 2025 12:38:25 +0000

Access to Justice

Nearly 30 legal entities may leave Utah’s regulatory sandbox program after state tightens rules

By Debra Cassens Weiss

March 4, 2025, 1:45 pm CST

At least 27 law firms and businesses may be leaving a Utah program that permits nontraditional legal services providers to operate in the state, including firms operated by nonlawyers, according to a published report. (Image from Shutterstock)

The exodus follows a tightening of regulations governing the program, Reuters reports.

Under the new rules, program participants must show that they will reach Utah consumers currently underserved by the legal market, and that the impact is substantial compared to an entity’s overall reach. National and international companies serving only a small number of Utah residents don’t qualify.

Utah appellate court administrator Nick Stiles told Reuters that at least 27 participants in the program have left or may be leaving because they are withdrawing or being terminated because of the changes.

Only about a dozen participants remain in the program, according to Reuters. Records indicate that those companies use technology to lower legal costs or use nonlawyers to provide legal services in areas such as medical debt and domestic violence, the article reports.

Rocket Lawyer is among the companies withdrawing from the program, Reuters reports. The online legal services company is shifting efforts to Arizona after it won approval in the state’s program, said Jack Rives, president of Rocket Lawyer subsidiary Rocket Legal Professional Services, in a statement to Reuters. Rives is the former executive director of the ABA.

Rocket Lawyer was one of the first entities approved to participate in the Utah program.

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Teachers say Trump’s anti-DEI rules are unconstitutional

homesafetytechpros — Thu, 06 Mar 2025 02:34:50 +0000

President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington, D.C. (Photo/Alex Brandon).

The Trump administration has hung “a sword of Damocles” over the heads of teachers and schools in their efforts to forbid diversity, equity, and inclusion (DEI) initiatives in public education, a lawsuit filed Wednesday in New Hampshire federal court alleges.

On Valentine’s Day, the civil rights division within the U.S. Department of Education (DOE) sent out a “Dear Colleague” letter to educational institutions that receive federal funding. The government warned institutions “must cease using race preferences and stereotypes as a factor in their admissions, hiring, promotion, compensation, scholarships, prizes, administrative support, sanctions, discipline, and beyond” or “face investigation and loss of federal funding.”

The plaintiffs, in their 48-page lawsuit, said the DOE’s guidance amounts to a “fundamental contradiction” by referencing civil rights law, violates “due process in failing to set clear standards,” and chills “First Amendment protected speech and expression” in a way that “could not stand no matter the process followed.” To that end, the correct — mandatory — process was not followed, the lawsuit adds.

“The Letter fails to acknowledge — let alone explain — its marked change from [the DOE’s] prior guidance and interpretations of Title VI, as well as other federal civil rights and education laws,” the filing reads. “And it fails to account for reliance interests created by decades of law, regulations, and longstanding agency guidance and interpretations. Moreover, it exceeds [the DOE’s] authority and is contrary to law, including the body of law it purports to interpret.”

Led by the National Education Association and its New Hampshire affiliate, the lawsuit seeks a declaratory judgment that the Feb. 14 letter violates the First and Fifth Amendments, that the letter is “arbitrary, capricious, an abuse of discretion, not in accordance with law, contrary to constitutional right, in excess of statutory jurisdiction, and without observance of procedure required.”

The chief problem with the letter, according to the plaintiffs, is that it is unconstitutionally vague because it relies on “conclusory and unsupported generalizations” while at the same time offering “no guidance that would help a school to understand how [the DOE] would apply existing legal precedent to reach these conclusions.”

These “sweeping conclusions about the existence of legal violations across states, local educational agencies, and educational institutions” amount to defects that make it impossible for people to understand what, exactly, is being changed, how to abide by the changes, and on what authority the changes are even being made. And this state of affairs violates the constitution, the lawsuit alleges.

“The Letter is impermissibly vague and violates the Fifth Amendment due process rights of Plaintiffs,” the filing reads. “All of its prohibitions are unclear and undefined, broad in scope, and turn on subjective judgement. To take an example, although the Letter asserts that ‘DEI programs’ unlawfully ‘discriminate,’ it fails to define what constitutes a ‘DEI program,’ explain how such programs ‘preference’ certain racial groups, or provide criteria for determining the circumstances under which educational programs that in any way address race might violate federal anti-discrimination law.”

Other examples follow:

Member B is an 8th Grade Social Studies teacher who covers United States history from the Civil War to the modern era, including state-required instruction on genocide and antisemitism and lessons on Juneteenth, the Reconstruction era, the Civil Rights Act of 1866, the Fourteenth and Fifteenth Amendments, the Black Codes, the KKK, the Jim Crow Era, the Compromise of 1877, the Tulsa race massacres, and other topics that necessarily touch on concepts of race, racism, and slavery. She does not know how she can teach or facilitate student research and discussion of these topics without creating a risk of being accused of violating the Letter’s vague conception of illegal discrimination. She feels that she is being held hostage to students and parents’ vague conceptions of discrimination and DEI under the Letter, which creates a risk to her career through its reporting mechanisms

More Law&Crime coverage: ‘Planned eliminations’: Reinstated Biden ethics enforcers proving to be a real thorn in Trump’s ability to fire federal workers

As a close second, the letter also infringes on First Amendment rights to free speech and free association, the plaintiffs allege.

“The Letter unconstitutionally penalizes the protected speech of Plaintiffs’ members by threatening to withhold federal funding from any educational institution that provides a ‘DEI program,”” the lawsuit reads.

And, to hear the plaintiffs tell it, the Trump administration made matters worse for teachers with the late February announcement of a website where “members of the public” are invited to upload so-called “receipts of betrayal” that identify educational institutions that promote “divisive ideologies and indoctrination.”

The filing predicts a dire upshot from such efforts, at length:

The loss of federal funding would be devastating to almost any educational institution, including the institutions that employ Plaintiffs’ members. A [DOE] investigation premised on the vague prohibitions in the Letter, in conjunction with the so-called “receipts of betrayal,” would impose onerous legal, administrative, and reputational costs on the targeted institution.

To avoid these costs, it is foreseeable that educational institutions will take steps to suppress any expression that could be construed as a “DEI program.” Because the Letter does not offer any guidance as to what constitutes a DEI program, any curricular or even extracurricular speech at an educational institution that conceivably runs afoul of [the DOE’s] positions on race, diversity, equity, or inclusion is at risk of being censored or penalized.

Plaintiffs’ members reasonably fear that their educational institutions will investigate, discipline, or take other adverse action against them if they continue to discuss with students issues pertaining to race, diversity, equity, or inclusion. Plaintiffs’ members also fear adverse action if they continue to assign readings, invite guest speakers, or engage in discussion and debate with students on anything that might be construed to fall within these prohibited categories

The lawsuit also complains the letter and its associated guidance was improperly issued by the agency and subagency in question.

“The Letter reflects final agency action,” the lawsuit reads. “It sets forth substantive obligations that it vows to ‘vigorously enforce,’ declares [the DOE’s] intention to ‘take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in th[e] letter,’ invites complaints, and announces that [the DOE] will begin enforcement as of February 28, 2025. Yet throughout the Letter, [the DOE] wholly eschews the congressionally imposed procedures designed to ensure that agency actions are not arbitrary and capricious but reasoned and within their sound expertise.”

At the heart of the matter is the plaintiffs’ belief that the Trump administration is attempting to dictate school curriculums and teachers’ lesson plans in order to root out the bugbear of DEI.

“In addition to its many procedural failings, the Letter’s substance is contrary to the constitutional rights of academic institutions and educators,” the filing goes on. “In its parts and as a whole, the Letter mandates compliance while at the same time leaving schools and educators without clear notice of the law, opening them to arbitrary and discriminatory enforcement. And it further oversteps the federal government’s role by reaching into curriculum, chilling the free speech and scholarship of academics and educators, and likewise impinging on the ability of students to hear perspectives the federal government finds objectionable.”

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And, in service of this effort, the DOE is playing fast-and-loose with language while rewriting and ignoring the relevant law, the lawsuit says. Here, specifically, the plaintiffs accuse the government of misapplying and misinterpreting the landmark 2023 U.S. Supreme Court decision barring colleges from affirmative action in admissions.

“The decision only addressed race as a formal admissions factor in higher education — it did not ban curriculum, student groups, DEI programming, or race-neutral diversity initiatives,” the American Civil Liberties Union, whose attorneys are representing the teachers union plaintiffs, said in a press release announcing the litigation.

The lawsuit, at its core, also reads as a full-throated endorsement of DEI principles from the nation’s largest labor union.

The original petition begins:

“The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Our schools cannot fulfill their role as the nation’s “nurseries of democracy,” without teaching students about the world, including the historical and lived experiences of people of different races, genders, and abilities. Diversity, equity, and inclusion initiatives are critical to that effort by both expanding equal educational opportunity and providing students with an education that prepares them to succeed in a diverse democratic society.

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Indicted SCOTUSblog founder Tom Goldstein can’t switch collateral, magistrate judge rules

homesafetytechpros — Fri, 31 Jan 2025 12:55:00 +0000

Criminal Justice

Indicted SCOTUSblog founder Tom Goldstein can’t switch collateral, magistrate judge rules

By Debra Cassens Weiss

January 30, 2025, 10:20 am CST

A federal magistrate judge has denied SCOTUSblog co-founder Tom Goldstein’s request to switch collateral to avoid putting at risk the Washington, D.C., home that he owns with his wife. (Photo by Alex Brandon/The Associated Press)

“The court finds that maintaining the Hawthorne Street property (the residence of Mr. Goldstein’s wife) as the property subject to forfeiture under the appearance bond … is necessary to reasonably assure that Mr. Goldstein will appear for all future proceedings in this case,” wrote Chief U.S. Magistrate Judge Timothy J. Sullivan of the District of Maryland in a Jan. 29 order.

In a motion filed that same day, Goldstein had argued that he had to use equity in the Hawthorne Street home to pay his lawyers in the federal tax case against him.

Goldstein had asked the court to substitute South Carolina properties owned by his father, stepmother and half-sister, Law360 reports.

Goldstein is represented by John Lauro of Lauro & Singer and Christopher Kise of Continental, lawyers who have also represented President Donald Trump, Bloomberg Law has reported. Stuart Berman of Lerch, Early & Brewer may be serving as local counsel, Lauro said when Goldstein pleaded not guilty to tax and loan fraud charges Monday.

Goldstein’s Jan. 16 tax indictment alleged that he schemed to understate gambling winnings on tax returns that he earned in “ultrahigh-stakes” poker matches, failed to report cryptocurrency transactions, used millions of dollars of his law firm’s money to pay gambling and personal debts, used firm cash to pay health insurance and salaries to women he was pursuing or with whom he was involved, and failed to report money owed in debts and taxes when he applied for a mortgage.

Goldstein was a U.S. Supreme Court litigator at Goldstein & Russell, the boutique firm that he owned until he announced in March 2023 that he was retiring from practice.

Goldstein is facing four counts of tax evasion, 10 counts of aiding and assisting the preparation of false and fraudulent tax returns, five counts of willful failure to pay taxes, and three counts relating to false statements on mortgage loan applications.

Goldstein’s lawyers have said he is “a prominent attorney with an impeccable reputation” who expects to be exonerated at trial.

Goldstein’s Jan. 29 motion also asked the judge to change the wording of his appearance bond, which allowed forfeiture of the home for failing to comply with conditions of release. Goldstein and his wife were concerned that the home could be forfeited based on a minor violation of release conditions.

One of the conditions of Goldstein’s release is that he refrain from gambling, including poker, PokerNews reports.

Sullivan agreed to the wording change. The appearance bond now requires forfeiture only if Goldstein fails to appear.

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Federal judge offers ‘unreserved apology’ after order says his Alito criticism violated ethics rules

homesafetytechpros — Wed, 08 Jan 2025 15:03:54 +0000

Judiciary

Federal judge offers ‘unreserved apology’ after order says his Alito criticism violated ethics rules

By Debra Cassens Weiss

December 18, 2024, 12:09 pm CST

A senior U.S. district judge in Massachusetts is offering an “unreserved apology” after he was found to have violated the judicial code of ethics for criticizing U.S. Supreme Court Justice Samuel Alito in an op-ed in the New York Times. (Photo from Shutterstock)

Senior U.S. District Judge Michael A. Ponsor of the District of Massachusetts is offering an “unreserved apology” and a commitment to “scrupulously avoid” future transgressions after he was found to have violated the judicial code of ethics for criticizing U.S. Supreme Court Justice Samuel Alito in an op-ed in the New York Times.

Ponsor’s apology letter resolves the ethics complaint, according to the Dec. 10 order by Chief Judge Albert Diaz of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia. Diaz investigated after the case was transferred to his court from the appeals court with jurisdiction in Massachusetts, where Ponsor is located.

The Wall Street Journal broke the story on Diaz’s order, followed by coverage by Reuters and Bloomberg Law.

Ponsor, an appointee of former President Bill Clinton, had criticized the display of an upside-down flag at Alito’s home and an “Appeal to Heaven” flag at the justice’s vacation home in the May op-ed.

The flags are associated with stolen-election claims and Jan. 6, 2021, U.S. Capitol rioters. Alito has said his wife erected the flags.

“Flying those flags was tantamount to sticking a ‘Stop the Steal’ bumper sticker on your car,” Ponsor wrote in the op-ed. “You just don’t do it.”

Noting Alito’s claim that his wife flew the flags, Ponsor offered a hypothetical. If his wife had expressed her view of the death penalty when he had a case pending on that issue, Ponsor said, he would have recused himself based on the appearance of partiality.

Diaz said Ponsor’s criticism harmed public confidence in the integrity of the judiciary, and its “political implications and undertones” violated a ban on commenting on the merits of pending cases.

Following the flags controversy, Democrats had called for Alito’s recusal in pending cases involving obstruction charges against accused Capitol rioters and President-elect Donald Trump’s immunity from prosecution in the federal election-interference case.

The public might have interpreted Ponsor’s op-ed “as a commentary on partisan issues and as a call for Justice Alito’s recusal” in pending Jan. 6 cases, Diaz said.

Ponsor’s apology letter said the ethics violations were “unintentional at the time but clear in retrospect.”

The Article III Project, a conservative group, had filed the ethics complaint against Ponsor.

“The courts and Judge Ponsor took this seriously,” said Mike Davis, the founder of the Article III Project, in a statement cited by Reuters and the Wall Street Journal. “I accept his apology letter at face value.”

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In ‘monumental moment,’ Montana Supreme Court rules for youths claiming right to clean environment

homesafetytechpros — Tue, 07 Jan 2025 22:49:56 +0000

Environmental Law

In ‘monumental moment,’ Montana Supreme Court rules for youths claiming right to clean environment

By Debra Cassens Weiss

December 19, 2024, 9:01 am CST

The Montana Supreme Court has struck down a state law banning consideration of greenhouse gas emissions in fossil-fuel-permitting decisions. (Photo illustration by Elmarie Jara/ABA Journal/Shutterstock)

The Montana Supreme Court on Wednesday struck down a state law banning consideration of greenhouse gas emissions in fossil-fuel-permitting decisions, citing a state constitutional provision that guarantees a “clean and healthful environment.”

The Montana Supreme Court sided with 16 youths who alleged environmental harm. The decision is the first of its kind by a state supreme court, according to a press release by Our Children’s Trust, a nonprofit public interest law firm, and the Western Environmental Law Center, which represented the plaintiffs.

The lead counsel for the plaintiffs, Nate Bellinger, called the opinion “a monumental moment for Montana, our youth and the future of our planet” in the press release.

The state constitutional right to a “clean and healthful environment” includes a stable climate system, the Montana Supreme Court said in the majority opinion by Chief Justice Mike McGrath. The alleged violation of that right gave the youth plaintiffs standing to sue, the state supreme court said in the Dec. 18 opinion.

Law360, the Hill and the Daily Montanan are among the publications with coverage.

The state had argued that delegates at the 1972 state constitutional convention didn’t intend to address climate change because it wasn’t discussed. Montana also argued that state efforts to address climate change wouldn’t have an impact without global action.

But the majority said constitutional delegates didn’t have to contemplate every constitutional harm that would be protected. Nor would they “grant the state a free pass to pollute the Montana environment just because the rest of the world insisted on doing so,” McGrath wrote.

A concurring judge agreed on the constitutional issue.

But the concurrence said solutions to global warming are in federal and international public policy choices, “rather than in a flashy headline-grabbing rights-based legal case in Montana.”

A dissenting judge argued that the plaintiffs did not have standing.

Chase Scheuer, the press secretary for the Montana Department of Justice, said the ruling was “disappointing but not surprising,” according to coverage by the Hill.

“The majority of the state supreme court justices yet again ruled in favor of their ideologically aligned allies and ignored the fact that Montana has no power to impact the climate,” Scheuer said.

The case is Held v. Montana.

Nation’s first youth climate lawsuits to go to trial

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County can’t prevent chartered deportation flights at airport, 9th Circuit rules

homesafetytechpros — Mon, 23 Dec 2024 03:22:46 +0000

Immigration Law

County can’t prevent chartered deportation flights at airport, 9th Circuit rules

By Debra Cassens Weiss

December 4, 2024, 9:02 am CST

An aerial view of the King County International Airport in Washington. (Photo from KingCounty.gov)

King County in Washington can’t prevent the federal government from using a Seattle-area airport for chartered deportation flights, the 9th U.S. Circuit Court of Appeals at San Francisco ruled last week.

The appeals court ruled for the U.S. government in a Nov. 29 decision, report Law360 and the Associated Press.

At issue was a 2019 executive order banning the servicing of deportation flights chartered by U.S. Immigration and Customs Enforcement at the King County International Airport in Washington. The order by King County executive Dow Constantine applied to fixed-base operators signing future leases at the airport, which is also known as Boeing Field.

Fixed-based operators lease space from Boeing Field and provide services to charter flights that include fueling, landing stairs, lavatory maintenance and aircraft parking, the 9th Circuit explained.

The appeals court said the order was invalid for two reasons.

First, the order violated the supremacy clause’s intergovernmental immunity doctrine that prohibits states from interfering with or controlling the operations of the federal government.

“The executive order effectively grants King County the ‘power to control’ ICE’s transportation and deportation operations, forcing ICE either to stop using Boeing Field or to use government-owned planes there,” the appeals court said.

Second, the order violated a contract agreement signed when the federal government transferred ownership of the airport back to King County at the end of World War II. The agreement gave the United States the right to nonexclusive use of the landing area without charge.

Judge Daniel A. Bress, a 2019 appointee of then-President Donald Trump, wrote the opinion.

King County revised its executive order after a federal judge ruled for the federal government last year, according to the AP. It bans King County from using its resources to aid deportation flights beyond what federal law requires.

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Car-racing costs can’t be deducted by lawyer as marketing expense, 10th Circuit rules

homesafetytechpros — Wed, 18 Dec 2024 03:15:43 +0000

Tax Law

Car-racing costs can’t be deducted by lawyer as marketing expense, 10th Circuit rules

By Debra Cassens Weiss

December 11, 2024, 8:48 am CST

A solo personal injury lawyer can’t the costs of car racing as a marketing activity, a federal appeals court ruled Monday. (ABA Journal file photo courtesy of Roman Lifson)

A solo personal injury lawyer can’t count the costs of car racing as a marketing activity, a federal appeals court ruled Monday.

The 10th U.S. Circuit Court of Appeals at Denver ruled against lawyer James William Avery, who sought to deduct more than $300,000 in expenses incurred in car racing, Law360 reports.

Avery moved to Indiana from Colorado in 2003. He continued to practice law in Colorado, but he hoped to boost his practice in his new state, as well, the 10th Circuit said in its Dec. 9 order and judgment.

To market his practice, Avery began to participate in car shows in Indiana and then tried his hand at car racing. Avery’s Dodge Viper, bought for more than $100,000, had a decal for his law firm on the back, he said in his appellate brief. The webpage for his “Viper racing team” was linked to his firm’s Facebook page.

He raced in at least seven states, including Indiana and Colorado.

But the costs of car racing were not an ordinary and necessary business expense for attorneys that can be deducted, the U.S. Tax Court ruled in February 2023. The 10th Circuit upheld the conclusion.

The Tax Court had found that Avery “greatly enjoyed car racing, which he found more exciting than his previous hobby of acquiring collector cars and participating in car shows. But we find that both activities were hobbies. No deduction is allowed for personal expenses of this kind.”

Avery had argued that the Tax Court should not have considered enjoyment of his marketing activity in its ordinary-and-necessary analysis. Doing so, he argued, could lead to a situation in which expenses incurred for a work vehicle would be deemed to be personal expenses simply because a taxpayer enjoys driving the vehicle.

The 10th Circuit said it isn’t obvious that the Tax Court actually considered Avery’s enjoyment of car racing as a factor in its analysis.

“But even if we read the Tax Court’s decision as Mr. Avery does, we see no error in considering personal enjoyment as one factor among others,” the 10th Circuit said.

Avery did not immediately respond to an ABA Journal request for comment sent to an email address listed on his appellate brief. Nor did he respond to a voicemail left at a number listed on the brief.

The case is Avery v. Commissioner of Internal Revenue.

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Opioid suits can’t be based on nuisance law in Ohio, top state court rules in $650M win for pharmacies

homesafetytechpros — Sun, 15 Dec 2024 05:10:05 +0000

Tort Law

Opioid suits can’t be based on nuisance law in Ohio, top state court rules in $650M win for pharmacies

By Debra Cassens Weiss

December 12, 2024, 3:23 pm CST

Image from Shutterstock.

A decision by the Ohio Supreme Court on the state’s product-liability law is good news for three national pharmaceutical chains ordered to pay more than $650 million for contributing to the opioid epidemic.

The state supreme court ruled Dec. 10 that the Ohio Product Liability Act eliminated all common-law nuisance claims in connection with the sale of products, Court News Ohio reports. The state supreme court ruled after the 6th U.S. Circuit Court of Appeals at Cincinnati asked for a ruling on the impact of the state law as amended.

The 6th Circuit certified the question to the Ohio Supreme Court in an appeal of a $650.6 million judgment against CVS, Walmart and Walgreens. The lawsuit was among several bellwether cases used to test claims and defenses chosen from about 3,000 opioid suits consolidated in the U.S. District Court for the Northern District of Ohio.

Two Ohio counties had contended that the damages awarded were for abatement of the nuisance, rather than for compensatory damages. As a result, the law didn’t bar their claims, they argued.

The Ohio Supreme Court ruled, however, that the type of relief requested is immaterial under the law as written. The state supreme court also rejected the counties’ claim that the nuisance suit didn’t meet the definition of a product-liability claim because there were no allegations of a product defect.

The three drug companies praised the ruling, Bloomberg Law reports. Walgreens said in a statement the decision “allows us to put this litigation behind us so we can continue focusing on the health and well-being of our patients, customers and team members in northern Ohio and across the country.”

Peter H. Weinberger represented the plaintiffs—Lake County and Trumbull County in Ohio. He told Bloomberg Law that the decision “will have a devastating impact on communities and their ability to police corporate misconduct.”

Nationwide, he said, opioid settlements with drugmakers, distributors and pharmacies total nearly $60 billion. The Ohio Supreme Court’s decision “undermines the very legal basis that drove this result,” Weinberger told Bloomberg Law.

The Ohio Supreme Court is the second top state court to rule that public-nuisance laws cannot be used in opioid suits.

The Oklahoma Supreme Court held in November 2021 that Johnson & Johnson’s opioid marketing did not create a public nuisance because it concerned the sale of a lawful product. The decision overturned a $465 million verdict.

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