Allison Rocker

My division is hiring attorneys! If you have experience in the areas listed (for example, if you have applied administrative law in the context of an area such as Clean Air Act, Clean Water Act, etc), please consider applying to join our excellent team. The American Law Division conducts sophisticated and fast-paced legal analysis for Congress in a non-litigation setting. The public reports we issue only scratch the surface of our work. #hiring #attorneys #administrativelaw #constitutionallaw #courts #civilprocedure (Any positions, statements, commentary, or views expressed by the author here are solely those of the author in her personal capacity and are not presented as those of the Congressional Research Service or the Library of Congress.)

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BREAKING NEWS: Judge Chhabria reluctantly grants plaintiffs motion for more discovery time in Kadrey v Meta after David Boies firm takes lead for plaintiffs. Joseph Saveri firm still part of legal team. Lieff Cabraser Heimann & Bernstein, LLP, who represents Authors Guild in SDNY and Farnsworth in a case related to Kadrey, could become co-class counsel with Boies firm. See below: ORDER. For the reasons stated on the record at today's hearing, the plaintiffs' motion to extend the case schedule is reluctantly granted. The new fact discovery cutoff will be December 13, 2024. The hearing on dispositive motions with respect to the named plaintiffs' claims will take place May 1, 2024 at 10 a.m. in Courtroom 4. The parties shall meet and confer about all surrounding dates and submit a stipulation regarding those dates within 7 days of this order. The parties are urged to bring any significant discovery disputes to Judge Hixson's attention sooner rather than later. The plaintiffs in the Kadrey case are ordered to confer with the plaintiffs in the Farnsworth case to discuss whether: (1) the case should be consolidated, with the Boies firm and the Cabraser firm serving as co-lead counsel; or (2) the Farnsworth case should be stayed pending adjudication of the Kadrey case. Within 7 days of this order, the plaintiffs in the two cases should either submit a joint letter or competing letters setting forth their positions. The Court understands Meta's position, but Meta is also free to file a letter if it wishes. Signed by Judge Vince Chhabria on 10/4/2024. (This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc2, COURT STAFF) (Filed on 10/4/2024) (Entered: 10/04/2024)”

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The United States Court of Appeals 5th Circuit just announced it will not adopt a proposed rule specifically requiring disclosure and other requirements for attorneys who use AI as part of their practice. Upon reflection, and based upon a lot of negative feedback on the proposed rule, they recognized that existing rules already cover the same situations. Specifically, attorneys are enforceably required to stand behind the truthfulness and accuracy of court filings. However, the court admonished litigants and lawyers alike that “I used AI” will not be an acceptable excuse for violating existing rules! Here is the formal notice from the court: https://lnkd.in/gJWyEyxg For color, here also are some recent news articles on this announcement: * Reuters: https://lnkd.in/gJmjWSqv * Bloomberg Law: https://lnkd.in/gaVqCkHi And, since I have it at hand, for your convenience, here is the full statement by the court: “The court, having considered the proposed rule, the accompanying comments, and the use of artificial intelligence in the legal practice, has decided not to adopt a special rule regarding the use of artificial intelligence in drafting briefs at this time. Parties and counsel are reminded of their duties regarding their filings before the court under Federal Rule of Appellate Procedure 6(b)(1)(B). Parties and counsel are responsible for ensuring that their filings with the court, including briefs, shall be carefully checked for truthfulness and accuracy as the rules already require. “I used AI” will not be an excuse for an otherwise sanctionable offense.” Personally, I think this court got it right. To the extent existing rules cover situations arising from use (or misuse) or AI, it is a good idea to apply those rules first before seeking to make more rules. In the event of demonstrable failures of existing rules, then perhaps it will be more practical to craft new rules to address the gaps that have been revealed. But it is, apparently, a very good idea to sound the alarm far and wide, loud and clear: sometimes generative AI provides incorrect or otherwise unsuitable information and it remains the duty of the attorney (among others) to carefully review and stand behind any work they pass forward. That concludes my public service announcement for today :-)

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Jay Edelson’s firm continues to lead. The “new paradigm” for class action lead counsel selection discussed below is great stuff. And it could also be more broadly applied with small modifications to Rule 23 adequacy of counsel analysis as well. #classactions #consumerprotection #rule23 #frcp23

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According to recent statistics from the Administrative Office of the U.S. Courts, the federal appeals courts that grant oral argument the most often are the D.C., Second, and Seventh circuits. These courts held oral argument in a higher percentage of appeals compared to other circuits from 2022 to 2023. Partner Katie Barrett Wiik discussed these trends with The National Law Journal, noting that logistically, it may be easier for some courts to schedule oral arguments than others. "For example, the D.C. Circuit covers a smaller area geographically than other circuits, so judges need not travel far to sit on panels. In contrast, judges in the Eighth Circuit are chambered in different federal courthouses across seven states and must travel to St. Louis, Missouri, or St. Paul, Minnesota, for a hearing." Katie said even if oral argument doesn’t change the vote outcome in a case, having in-person hearings improves institutional legitimacy and the legal reasoning behind decisions. It also helps build relationships among judges, staff and attorneys, she added. “[Oral argument] literally brings people together, and that’s essential, I would say, for the health of the institutions and for the relationship-building between and among the various stakeholders in the appellate courts,” she said. “That really can’t be replicated when everyone’s just approving things on the briefs or having remote meetings.” To read the full article, visit: https://lnkd.in/eX98Q6cv #OralArgument #Appeals #CircuitCourt

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Finally a shred of sanity from SCOTUS (except J. Alito and J. Gorsuch) about the Consumer Financial Protection Bureau. Yes: Congress' appropriation of the Bureau's budget through the Federal Reserve comports with the language and the historical implementation of the Appropriations Clause. My favorite part of the opinion summary: "The First Congress’ practice confirms this understanding, as appropriations that supplied funding to the Customs Service and the Post Office were not time limited. The associations resist the analogy to the Post Office and other fee-based agencies, arguing that such agencies do not enjoy the same level of fiscal independence as the Bureau. But, the associations fail to explain the relevance of that difference to the question whether a law complies with the constitutional imperative of an appropriation." And that is the history of the ongoing gaslighting of the CFPB: "No other agency is as unaccountable as the CFPB!" Whenever it's pointed out that many other agencies have a similar governance structure or similar funding mechanism as the CFPB, it's ignored. The most original such contrived argument was that of the Fifth Circuit, who claimed that the problem was that the CFPB's budget is "double-insulated" from Congress. The only precedent I found for such a concept was from the precedential film Animal House with J. (Dean) Wormer: Greg: What do you intend to do sir? Delta's already on probation. Dean Wormer: They are? Greg: Yes, sir. Dean Wormer: Oh. Then as of this moment, they're on double secret probation! Greg: Double secret probation, sir? Dean Wormer: There is a little-known codicil in the Faber College constitution which gives the dean unlimited power to preserve order in time of campus emergency. Find me a way to revoke Delta's charter. You live next door. Put Neidermeyer on it. He's a sneaky little shit, just like you, right? [Greg nods] The time has come for someone to put their foot down. And that foot is me.

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Most BigLaw attorneys really dislike taking the time to do their annual self-evaluations. It can feel like just one more unnecessary administrative task - and it can be hard to figure out what to include and highlight. But your annual review is also a powerful way to present yourself in the way that you want to be seen in your firm - at any stage of your legal career. You use it to focus the reader's attention on your accomplishments. You make sure that praise from clients and colleagues isn't forgotten in what you write about. And you leverage it to tell a story about why you add value and will continue to do so. On today's episode of Big Law Life, I talk about how to reframe your thinking around this self-assessment tool - and how to make it work better for you, including by preparing for it earlier in the year, and using it as a tool for feedback before you even submit it to your firm. I hope you'll check it out at: https://lnkd.in/ey5-SDp3 #biglaw #lawfirmlife #lawyerlife #worklife #selfassessment #selfevaluation #annualevaluation #annualreview #feedback #careerdevelopment #careermanagement #lawyercoach #lawyercoaching

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In-House #Patent Counsel take note -- the #Senate Judiciary Committee has narrowly approved the #PREVAIL Act (S. 2220), a significant bill aimed at reforming USPTO #IPR and #postgrantreview proceedings. A key takeaway is the PREVAIL Act's proposed changes, particularly the elevated burden of proof for patent invalidity, could significantly strengthen patent protection. However, in-house counsel should closely monitor the bill's progress and potential amendments, as the narrow approval margin suggests further modifications may occur before final passage. Counsel should also assess how the standing requirement and joinder limits might affect their company's patent strategy, both offensively and defensively. #PatentLaw #USPTOReform #PREVAILAct #InHouseCounsel https://lnkd.in/dbXYvGSN

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The USPTO has this week been discreetly sending notices to #patent applicants about a 2-month long data #breach related to unpublished applications. Titles and application numbers were inadvertently accessible by search. Have you heard about this yet? The relevant part of the notices I've seen states: "Between February 5... and March 29, 2024, the USPTO unintentionally... permitted [the application number ... and title of the invention] to be viewed by unauthorized individuals with access to registered Assignment Center accounts... [I]t is important to note that your specification and claims were not part of the information made available and were not accessed. Any improper access of the application ... is not considered a publication of such applications [and] No rights in United States patents are threatened by the access to unpublished applications. It is extremely unlikely that the title could disclose the invention in a way that would constitute patent defeating prior art in any jurisdiction. To the extent any issue is raised, the USPTO will assist applicants by confirming that the disclosure was erroneous and inadvertent." The USPTO does not appear to have made any public announcement about this yet, and I suspect they’ll be sending more notices out this week. As of now, consider submitting a FOIA request to the USPTO to tell you whether your data was *actually* accessed in the period: https://lnkd.in/e_HCzy4c Anyone else have any thoughts or news on this?

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Tuesday musing. 🤔 I listen to several legal podcasts, and I have heard a good number of legal "experts" say that if the former president is reelected, he will "simply order the Justice Department to dismiss the cases." Not so. Federal Rule of Criminal Procedure 48 states, "[t]he government may, WITH LEAVE OF COURT, dismiss an indictment, information, or complaint." It goes on to state, "[t]he court MAY dismiss an indictment, information, or complaint if unnecessary delay occurs in . . . bringing a defendant to trial." So, in the D.C. case and the Mar-a-Lago case, DOJ will need court approval to dismiss the indictments. Courts do not always acquiesce. True, the former President's cases are different, most notably because (although it has never been decided by a court) it is DOJ's policy that it cannot indict or try a sitting president. BUT, considering the importance of cases, it is not a slam dunk that Judge Chutkan will dismiss the D.C. case. Judge Cannon? Well, that's another story. 🤷‍♂️ What say you, David Weinstein and Roger Parloff? PS: Obviously, a sitting president cannot order state prosecutors to dismiss cases.

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#ICYMI: "Times Up? Not So Fast: Supreme Court Rules Damages Are Not Limited to Three Year Look Back Where Copyright Act Claim is Timely under “Discovery Rule” NEW #GenovaBurns Complex Commercial Litigation blog authored by Partner Lawrence Bluestone, Esq. and Gina Maturi, J.D. (pending admission). #CopyrightLaw #IntellectualProperty #CopyrightInfringement #NowYouKnow #ComplexCommercialLitigation https://lnkd.in/g9CBPpxd

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New Family Law Brief from Daniel Gold: Delve into the insightful perspectives on the impact of staying together "for the kids." 1️. Negative Impact on Children: Learn how parental discord can emotionally and psychologically affect children, leading to stress and anxiety. 2️. Long-term Consequences: Discover the far-reaching effects of raising children in an unhappy environment, with insights into the experiences of adult children of late-life divorces. 3️. Unintended Damage: Explore the unintended consequences of staying together for the sake of children, including how unhealthy relationship dynamics can impact their future. Moving Forward: Gain valuable advice on prioritizing both parental and children's well-being and explore healthier alternatives like co-parenting arrangements for more positive outcomes. If you're navigating the complexities of marriage and parenthood, Daniel Gold is here to offer support and guidance every step of the way. Read the full brief from Psychology Today here https://shorturl.at/gMT19 #FamilyLaw #Parenting #Divorce #CoParenting #WellBeing #Relationships #DanielGold #TLDLaw #FamilyLawAttorney

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#FTC Bans Most Non-Competes, Litigation Inevitable In a partisan vote of 3-2, the FTC, led by controversial Chair Lina Kahn, has voted to ban most employment-linked non-competes. But multiple legal challenges will follow, and they are highly likely to be successful. Rationale: The agency contends that approximately 30 million workers, or about 20% of the U.S. work force, are subject to a non-compete. FTC projects increases in wages resulting from its ban of something in the neighborhood of $300 billion per year, with employees having greater negotiation leverage and engaging in increased “job hopping”. No Help for Senior Executives: Senior executives, however, get carved out from the ban, supposedly because their non-competes are presumed to be a function of negotiation. Potential #Whistleblower Impact?: Because some potential whistleblowers have non-competes and are concerned that they may be frozen out of alternative employment if they are terminated or otherwise leave their employment, the ban, if implemented, could lead some employees to come forward with allegations of employer misconduct where they would not otherwise have done so. But Litigation Is Inevitable: The dissenting commissioners, both Republicans, acknowledged the inevitability of litigation in recording their “no” votes. One went so far as to predict the ban would be overturned. Claims: Plaintiffs interested in challenging the ban—and there are a whole lot of them—will be eyeing a long list of potential claims. Those will include that the FTC’s enabling statute does not authorize the ban, that the ban is otherwise arbitrary and capricious under the Administrative Procedure Act, and that Congressional authorization for such a fundamental rewrite of the relative roles of state and federal government in regulating non-competes runs afoul of the “major questions” doctrine. That doctrine prohibits agencies from seeking to address issues, not specifically delegated to them by Congress, where the issue has “vast economic and political significance”. Critics see the ban as the “quintessential” major questions problem. Courts: Multiple challenges will be filed in multiple courts, but a healthy bolus will be filed in decidedly regulation-skeptic jurisdictions, like the U.S. 5th Circuit, which includes Louisiana, Mississippi, and Texas. Stay tuned, folks, we are in for a bumpy ride here. #noncompetes #LinaKahn #majorquestions #apa #fca #healthcarefraud #healthcarecompliance

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Yesterday, the American Bar Association (ABA) took a significant step forward in addressing the role of artificial intelligence in the legal profession. On July 29, 2024, the ABA released Formal Opinion 512, providing thoughtful and comprehensive ethics guidance on the use of “Generative Artificial Intelligence Tools” in legal practice. This important opinion represents a pivotal moment in the U.S. legal landscape, signaling a growing recognition of generative AI as a valuable and beneficial technology for the practice of law. A Shift in Perspective The ABA’s new guidance marks an important shift in how the legal profession views generative AI. While not explicitly mandating its use, the opinion certainly suggests that understanding and potentially utilizing generative AI tools is becoming increasingly important for competent legal practice. This perspective aligns with the evolving nature of legal technology competence, drawing parallels to how use of email, computerized legal research, and eDiscovery have become standard skills in the lawyer’s arsenal of tool use. Recognizing the Benefits Formal Opinion 512 acknowledges the potential of generative AI to enhance both the efficiency and quality of legal services. By highlighting these benefits, the ABA is effectively encouraging lawyers to explore and consider how these tools might improve their practice and better serve their clients. This recognition is a clear indication that the legal profession is moving towards embracing innovative technologies rather than viewing them primarily with skepticism. Balancing Innovation and Ethics While the opinion is forward-thinking in its approach to generative AI, it appropriately emphasizes the importance of responsible use. The guidance carefully outlines how existing ethical rules apply to this new technology, ensuring that the core values of the legal profession are maintained even as new tools are adopted. This balanced approach demonstrates the ABA’s commitment to fostering innovation while upholding the highest standards of professional conduct. I outline some of the specific ethical considerations, and put this in a broader context, in my blog post on this new Opinion, here: https://lnkd.in/g8GWaFKK

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