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News for, and by, our local legal community, curated and created by the Santa Clara County Bar. The opinions expressed in this blog are the authors' own and do not necessarily represent or reflect the views of the Santa Clara County Bar Association, its members, its employees, or its governing board.

 

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May 26 Digest

Posted By Administration, Friday, May 26, 2017

When Michelle Wanted Barack to Be a SCOTUS Law Clerk

President Barack Obama, announces the nomination of chief judge Merrick Garland, of the U.S. Court of Appeals for the District of Columbia Circuit, to the U.S. Supreme Court, at the Rose Garden. March 16, 2016. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

The day after Barack Obama became the first African-American president of the Harvard Law Review in 1990, he took a phone call from Sheryll Cashin, then a law clerk to Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit.

Mikva by then was a “feeder judge” for Supreme Court law clerks, and Cashin told Obama that Mikva was “very interested in you,” according to a new biography of Obama’s life before becoming president in 2009.

Calif. Chief Justice Defends Letter Assailing Trump's Immigration Arrests

SACRAMENTO—California Chief Justice Tani Cantil-Sakauye said the state Supreme Court chambers were flooded with calls from “profane and very angry people” after she asked federal officials in March to stop arresting undocumented immigrants in state courthouses.

“And I received a lot of letters that said, ‘This is not your job … You shouldn’t be involved in politics. You’re just a judge who should interpret the law.’” Tani Cantil-Sakauye said Thursday in remarks at the Sacramento Press Club.

The chief justice’s letter to U.S. Attorney General Jeff Sessions and U.S. Homeland Security John Kelly accused federal agents of “stalking undocumented immigrants in our courthouses” and instilling fear in people who are summoned to court. Sessions and Kelly responded with their own letter two weeks later, criticizing Cantil-Sakauye’s use of the word “stalking” and insisting that the courthouse arrests would continue because state leaders had blocked immigration agents’ work in other locations, including prisons and jails.

An Employee Spoke Out on Glassdoor.com, and Now the EEOC Is Suing His Company

Not long after Adrian Scott Duane posted a comment on Glassdoor.com that said his company’s managers “do not know what the word ‘discrimination’ means, nor do they think it matters,” the 32-year-old transgender worker’s desk had been cleared and he was fired from a Silicon Valley-based education technology company.

The U.S. Equal Employment Opportunity Commission on Wednesday filed suit in California against IXL Learning Inc. on behalf of Duane claiming the company violated federal law and that the dismissal was retaliation for the comments Duane posted on Glassdoor, the job recruiting website.

“While the platforms for employees to speak out against discrimination are evolving with technology, the laws against retaliation remain constant,” said EEOC trial attorney Ami Sanghvi. “The main reason to litigate is to send a strong message that we will protect workers that engage in activities, not just through traditional avenues.”

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May 25 Digest

Posted By Administration, Thursday, May 25, 2017

4th Circuit Uses Trump's Comments in Blocking Travel Ban

The U.S. Court of Appeals for the Fourth Circuit is the first appellate court to uphold an injunction against President Donald Trump’s revised travel ban executive order, a move that likely sets the issue up for an appeal to the U.S. Supreme Court.

Thursday’s opinion keeps in place a Maryland district court’s nationwide injunction against the order, issued March 6. The executive order blocked the entry of immigrants from six majority-Muslim countries.  

“Congress granted the president broad power to deny entry to aliens, but that power is not absolute,” Judge Roger Gregory wrote. “It cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

Wanna Raise? Top Silicon Valley Counsel Give 8 Tips for Women Lawyers

Asking for a raise depends on timing, approach and company culture, said several top women in-house lawyers gathered at the Menlo Circus Club in Atherton, California, for an event focused on women and compensation in the legal industry.

Recruiting firm Kerwin Associates hosted the breakfast session, which included a panel moderated by Sophos Ltd. senior vice president and general counsel Eleanor Lacey; ClearSlide general counsel Olga Mack; Jenny Kim, vice president, law and policy group and associate general counsel, corporate legal group, at Intel Corp.; Maxim Integrated Inc. chief human resources officer Laura Owen; former Google counsel and current Ulu Ventures managing partner Miriam Rivera; and former SolarCity general counsel Seth Weissman.

The panel assembled as gender pay disparity continues to be a hot topic in Silicon Valley and elsewhere, affecting women up and down the corporate ladder. In 2016, of the top-paid CEOs in the United States, just 6 percent were women, according to an analysis by the data firm Equilar and The Associated Press released Wednesday. Female chief executives earned a 9 percent pay boost in median pay from the year before, but the number of women in CEO positions hardly increased, the report said. In-house counsel are not exempt from the pay disparities, though they fare somewhat better than women in firms, according to a recent report in Corporate Counsel. Meanwhile, the U.S. Department of Labor's administrative lawsuit against Google demanding its employee compensation data continues, with another hearing set for Friday.

 

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Santa Clara County Observes Family Reunification Day May 31, 2017

Posted By Administration, Thursday, May 25, 2017

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May 24 Digest

Posted By Administration, Wednesday, May 24, 2017

Trump Turns to Kasowitz, Rejecting DC Legal Vets

In a characteristically unorthodox move, President Donald Trump is reportedly poised to tap New York commercial litigator Marc Kasowitz to lead his personal legal team amid probes into his campaign’s alleged contacts with Russia.

Far from an established, Washington, D.C., white-collar figure, Kasowitz is best known for handling a mix of complex, high-stakes civil disputes in New York’s state courts, particularly involving financial institutions. He and his firm, Kasowitz Benson Torres, brought billions of dollars in claims against Wall Street banks in the wake of the subprime crisis.

But Kasowitz has also been a loyal attorney for Trump and his interests for close to two decades, in matters ranging from defamation to debt restructuring for Atlantic City casinos. Former Kasowitz Benson name partner David Friedman, a bankruptcy lawyer who was appointed U.S. ambassador to Israel this year, was also a longtime Trump adviser.

Trump's DOJ Can't Quickly End Suit Over Rule-Rollback Order

A lawsuit challenging the Trump administration’s order that agencies eliminate two existing regulations for each new one will go forward despite the U.S. Justice Department’s effort to end it quickly on procedural grounds.

U.S. District Judge Randolph Moss in Washington on Tuesday denied the government’s request that he freeze the action on the plaintiffs’ motion for summary judgment in Public Citizen v. Trump.

The Justice Department had urged Moss to rule first on the government’s motion to dismiss the case on the ground that the challengers, who include labor and environment advocates, don’t have standing to bring a case in the first place and that their claims are premature.

The CFPB Is Fighting for Its Life. Here's What to Know

From the day it was born out of the Dodd-Frank reforms, the Consumer Financial Protection Bureau has faced questions over the constitutionality of its independent, single-director structure.

On Wednesday, the U.S. Court of Appeals for the D.C. Circuit will take a step toward providing an answer, as a full panel of 11 judges will hear arguments in the mortgage provider PHH Corp.’s appeal of a $109 million penalty.

New Jersey-based PHH, represented by a team from Gibson, Dunn & Crutcher, prevailed before a divided three-judge panel, which struck down the CFPB’s structure as unconstitutional in October. Writing for the majority, Judge Brett Kavanaugh slammed the “massive, unchecked power” afforded to the CFPB director and said the president should be able to fire the agency’s leader at will—not just for cause. That ruling was vacated when the D.C. Circuit agreed to rehear the case.


 

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Will 'Dead Man's Statute' Help Fox Mount Defense Without Ailes?

Posted By Administration, Monday, May 22, 2017

The “Dead Man’s Statute” isn’t Johnny Depp’s latest “Pirates of the Caribbean” movie.

It’s a rule of evidence—adopted in many states, including New York—that could help 21st Century Fox attorneys mount an effective defense in the raft of sexual harassment suits it's facing, despite the death earlier this week of Roger Ailes. The Fox News founder, who paid $20 million to end a suit brought by former anchor Gretchen Carlson, was accused in several of the disputes that followed her explosive allegations.

The principle underlying the dead man’s statute dates back to the 19th century and is used today mainly in probate cases. Designed to prevent perjury, it prohibits a party with an interest in civil litigation from testifying against a dead party about communications with the deceased.

It would apply only in cases where Ailes, accused of making unwanted advances toward several female Fox News anchors and guests, was named as a defendant.

Read the full story at The National Law Journal

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Chemerinsky Named Law Dean at UC Berkeley

Posted By Administration, Thursday, May 18, 2017

Erwin Chemerinsky will be the next dean of the University of California, Berkeley School of Law.

The school announced Wednesday that Chemerinsky, a preeminent constitutional law expert and founding dean of the University of California, Irvine School of Law, will assume the deanship on July 1 for a five-year term.

He replaces Interim Dean Melissa Murray, who took that position in March 2016 after former dean Sujit Choudhry stepped down amid a sexual harassment scandal.

“I feel so incredibly fortunate,” Chemerinsky said in an interview Wednesday. “I’ve had the most blessed career. Being at Irvine has been an amazing experience, and this is a wonderful new opportunity. Berkeley is a terrific law school and a great campus. I’m very committed to the public service mission of the University of California.”

Read the full story at The National Law Journal

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The 2016 Law Grads Hiring Report

Posted By Administration, Wednesday, May 17, 2017

The American Bar Association has released detailed data on the employment of the law school class of 2016, and there’s both good and bad news.

These Law Schools Aced the 2016 Job Market
Duke Law School sent a higher percentage of 2016 graduates into law jobs than any other school, according to new employment data from the American Bar Association.

CHART: Where the Jobs Are
We’ve delved into the ABA’s trove of jobs data to determine which schools had the highest percentage of graduates in law jobs, which sent the highest percentage of students into federal clerkships, and which had the highest unemployment rates. We’ve also collected data on Big Law hiring, government and public interest jobs, and state clerkships.

Read the full story at The National Law Journal

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May 16 Digest

Posted By Administration, Tuesday, May 16, 2017

California’s Bar Exam Results Are Absolutely Abysmal

The results are in from the February 2017 administration of the California bar exam, and they are not pretty.

According to a press release from the State Bar of California, the overall passage rate for the February 2017 exam was 34.5 percent, while the passage rate for first-time takers was 39 percent. The passage rate for retakers was a shockingly low 33 percent. For the sake of comparison, let’s take a look at the results for the past few administrations of the California bar exam.

In February 2015, the overall passage rate was 39.5 percent, and the passage rate for first-time takers was 47.4 percent. In July 2015, the overall passage rate was 46.6 percent, and the passage rate for first-time takers was 60 percent. In February 2016, the overall passage rate was 35.7 percent, and the passage rate for first-time takers was 45 percent. In July 2016, the overall passage rate was 43 percent, and the passage rate for first-time takers was 56 percent.

ABA Counters Trump's Transgender Directive in Appeals Court

The consequences of discrimination follow transgender students and their classmates into the legal profession, warned the American Bar Association in an amicus brief that urged a federal appellate court to find that such unfairness violates federal civil rights.

"Transgender students who suffer academically are less likely to pursue a legal education, depriving the bar of voices capable of speaking on behalf of those marginalized for their gender," said ABA president Linda Klein of Baker Donelson wrote in the brief, filed in the U.S. Court of Appeals for the Fourth Circuit. "Moreover, their classmates who have become lawyers are left less able to empathize with, and to provide effective representation for, their transgender or gender-nonconforming clients."

The ABA’s brief were among more than a dozen filed May 15 in G.G. v. Gloucester County School Board. Baker & Hostetler filed a brief for 56 companies—including Apple Inc., Microsoft Corp., Twitter Inc., and Yahoo! Inc—in support of the Virginia teenager at the center of the challenge for greater protections. Eighteen state attorneys general also filed an amicus brief in support of the teenager. Several conservative and religious groups filed papers in opposition.

Use of Noncompete Clauses Grows Even as More States Move to Limit Them

Noncompete clauses in employment contracts can be risky, and even law firms that use them find themselves fighting over what the wording means and how legally restrictive the clauses can be.

Just ask Herbert Smith Freehills (HSF) that recently found itself in a court battle with eight of 10 lawyers that White & Case hired away to open an office in Australia. The eight partners were subject to a noncompete clause at the firm that required six months' notice and restrained them from practicing as a partner at a competing firm for one year, according to sibling publication The Asian Lawyer.Herbert Smith Freehills sued the eight attorneys and reached a court settlement on May 2. The accord allowed the lawyers to join White & Case as of March 2, but not as partners until one year after their resignations last September.

Companies and law firms in the United States are increasingly inserting noncompete clauses into employment contracts, and sometimes for good reason: Such clauses can help protect trade secrets such as the recipe for a product, or other confidential information such as client lists.

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May 15 Digest

Posted By Administration, Monday, May 15, 2017

SCOTUS to States: Keep Out of Arbitration Agreements

The U.S. Supreme Court on Monday continued its streak of pro-arbitration rulings, reaffirming in a closely watched nursing home case that states may not impose rules that single out, overtly or otherwise, arbitration agreements for negative treatment.

The 7-1 ruling came in Kindred Nursing Centers v. Clark, a seemingly narrow case that could have broader ramifications for the nursing home industry in particular and businesses in general that look to the Federal Arbitration Act to protect arbitration agreements from invalidation under state laws.

“The FAA … preempts any state rule discriminating on its face against arbitration,” Justice Elena Kagan wrote for the majority, adding that the law also “displaces any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements."

What the 9th Circuit Is Saying About Trump's New Travel Ban

The lead lawyer for the Department of Justice defending President Donald Trump’s executive order limiting travel from six predominantly Muslim countries began his argument to the U.S. Court of Appeals for the Ninth Circuit by focusing on standing.

But Acting Solicitor General Jeffrey Wall was again called to defend Trump's motivation for the order and answer allegations that it discriminates against Muslims.

Three appointees of president Bill Clinton—Circuit Judges Ronald Gould, Michael Daly Hawkins and Richard Paez—heard arguments in the case Monday morning.

Alice Fisher of Latham Considered for FBI Director—But Who Is She?

Washington corporate defense lawyer Alice Fisher interviewed on Saturday to be the next FBI Director, after the agency was shocked by the firing of James Comey last week. Fisher’s among the reported top contenders.

The National Law Journal has done comprehensive coverage of Fisher, the former Bush-era Criminal Division chief-turned law firm leader, over the years, since she’s been a major name in public service at the U.S. Justice Department and private practice at Latham & Watkins.

Here are some highlights of Fisher’s career, based on past NLJ coverage: Fisher had no experience as a prosecutor when she first joined the Justice Department in 2001.

 

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What's Next For Ex-FBI Director James Comey?

Posted By Administration, Wednesday, May 10, 2017

Citing his handling of the investigation into Hillary Clinton’s email server, President Donald Trump on Tuesday fired FBI Director James Comey.

The decision marks only the second time an FBI director has been fired by the president in more than three decades. The sudden news, announced via a White House press release, shocked lawmakers, political pundits and the legal community.

“This is big news. Big news,” said Stephen Ryan, a partner at McDermott Will & Emery and a former federal prosecutor in Washington. “I don’t think he had the confidence of the American public anymore. In truth, it was probably time for him to go, although this is quite abrupt and interesting in itself.”

Dechert partner David Kelley, Comey's successor as U.S. attorney for the Southern District of New York, said simply in an email: "The canary in the mine has died."

A memo from Deputy Attorney General Rod Rosenstein said Comey was “wrong to usurp” the attorney general’s authority last July when he announced the closure of the agency’s Clinton investigation. Rosenstein’s letter to Attorney General Jeff Sessions also said Comey “ignored another longstanding principle” by holding a press conference to “release derogatory information” about Clinton.

Read the full story at The National Law Journal

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more Latest News

5/26/2017May 26 Digest

5/25/2017May 25 Digest

more Calendar

6/7/2017
Professionalism, Decorum, Practice and Procedure: A View From The Bench

6/8/2017
6th Annual Don Sagatun Edwards Child Services Fundraising Event

6/15/2017
5th Annual From Having it All to Leaning In Seminar

Recent Recognitions
Nora V. Frimann2016 Professional Lawyer of the Year
Mariel BlockBarrister of the Year 2016

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