IMDb Age Law Declared Unconstitutional

From Law360.com

A federal judge ruled Tuesday that a California law requiring IMDb to remove an actor’s age information upon request, an effort to fight age discrimination, was “clearly unconstitutional.” Ruling that “regulation of speech must be a last resort,” U.S. District Judge Vince Chhabria said the state should have tried less invasive options, like beefing up existing discrimination rules, rather than “censor a source of truthful information.”

AB 1687, passed in September 2016, requires database sites like IMDb — the Internet Movie Database — to remove an actor’s age if requested. The stated goal was to prevent discrimination in Hollywood casting against older actors, but IMDb said it violated the First Amendment.

In Tuesday’s ruling siding with IMDb, Chhabria described AB 1687 as a misguided law that should have instead aimed to fight discrimination against women, since age bias in Hollywood is “at root … far more a problem of sex discrimination.”

“The defendants barely acknowledge this, much less explain how a law preventing one company from posting age-related information on one website could discourage the entertainment industry from continuing to objectify and devalue women,” the judge wrote. “If the government is going to attempt to restrict speech, it should at least develop a clearer understanding of the problem it’s trying to solve.”

IMDb sued in November 2016, claiming that the recently passed AB 1687 would “chill free speech and undermine public access to factual information” without actually addressing age discrimination. SAG-AFTRA, the union for Hollywood actors, later joined the case in support of California.

Chhabria quickly sided with IMDb, issuing a preliminary injunction in early 2017 that barred the state from enforcing the law while the case progressed. At the time, he said it was “difficult to imagine how AB 1687 could not violate the First Amendment.”

Read more in Law360.

More Coverage in The Hollywood Reporter

 

IMDb.com was represented by John Hueston, Moez KabaAdam Olin, and Jenna Williams.

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Gold King Contractor to Face Navajo Nation Claims

A New Mexico federal judge on Monday largely left intact the state and Navajo Nation’s consolidated lawsuits seeking damages from a U.S. Environmental Protection Agency contractor involved in the 2015 Gold King Mine spill.

Environmental Restoration LLC, which contracted with the EPA to work at the Colorado mine and is allegedly partly responsible for the disaster that polluted two rivers that flowed into the Navajo Nation and New Mexico, had asked U.S. District Judge M. Christina Armijo to toss the lawsuits, but the judge found there was enough evidence to proceed with most of the plaintiffs’ claims.

The judge first declined to toss the state and Navajo Nation’s Comprehensive Environmental Response, Compensation and Liability Act claims for cost recovery and injunctive relief. In particular, she rejected Environmental Restoration’s assertion that is was not a facility “operator” as defined by CERCLA.

She noted that the company was one of the parties present and working at the site on Aug. 4 and Aug. 5, 2015.

Read more in Law360  By Juan Carlos Rodriguez

The Navajo Nation is represented by John Hueston, Moez Kaba, Andrew Walsh, and Kasey Mitchell.

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DOJ Memo Signals Qui Tam Sea Change

In a column for the Los Angeles Daily Journal,  Brian Hennigan and Padraic Foran weigh in on the U.S. Department of Justice’s new directives for qui tam cases.

Brian Hennigan and Padraic Foran on DOJ Qui Tam Memo

Memo suggests shift in DOJ’s qui tam approach

By Brian Hennigan and Padraic Foran

The Department of Justice issued an internal memorandum this month that signals a shift in its approach to qui tam actions, encouraging government attorneys to act more aggressively to dismiss certain False Claims Act cases. Whether this policy will actually result in more dismissals remains to be seen. But the policy is a welcome one, especially for defendants. It also has immediate and significant implications for all qui tam litigants, especially those in the pre-intervention stage.

In every qui tam action filed under the False Claims Act, 31 U.S. Section 3739, the government is authorized to investigate and decide whether to intervene — that is, take over the litigation. About 75 percent of the time, the government declines to do so. But the scant 25 percent of cases in which it does intervene account for the overwhelming majority of recoveries. In 2017, more than 87% of total qui tam recoveries (3,011,269,763) came from intervention cases. Non-intervention cases accounted for less than 13 percent of recoveries (or $425,767,335). In 2016, non-intervenors fared even worse, accounting for just 4 percent of total recoveries.

Despite the low success rate of non-intervention cases, the government seldom seeks their dismissal. Yet dismissal, according to the memo, is necessary if the DOJ is to perform its “important gateway keeper role in protecting the False Claims Act.” And until this month, there have not been formal guidelines for seeking dismissals.

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Securities Cases to Watch at the High Court

Alex Romain and Jenna Williams Canvas Key Securities Cases

Alex Romain and Jenna Williams

This term, the U.S. Supreme Court will consider three cases related to securities litigation and enforcement. In a column for the Los Angeles Daily Journal, Alex Romain and Jenna Williams analyze the import of three cases treating a broad range of topics. These include the statutory interpretation of the Dodd-Frank Act and its whistle blower protections, the jurisdictional reach of state courts in certain class actions, and separation of powers issues related to the appointments clause of the U.S. Constitution. Mr. Romain and Ms. Williams also discuss a fourth securities case that was accepted for review, but which has been stayed pending settlement. Nonetheless, it presents an important question the court is likely to review in the future.

From the article:

Lucia v. Securities and Exchange Commission (on appeal from the D.C. Circuit).

The short-term impact of this case for litigants will depend on how the court crafts a remedy if it finds a constitutional violation. If the court holds that the SEC judges have been “inferior Officers” all along, and have, for decades, been unconstitutionally presiding over proceedings, what happens next? Will all past and present administrative actions heard by SEC judges be dismissed and expunged because of the unconstitutionally appointed judge who presided over the case? That is unlikely. But if the court finds that the SEC’s practice violates the appointments clause, the appropriate remedy is not easy to determine.”

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After Wildfires and Mudslides, SoCal Edison Engages Hueston Hennigan

Southern California Edison has chosen Hueston Hennigan to serve as lead counsel to defend against claims and litigation arising out of the recent  Thomas Fire and other southern California wildfires. The firm has also been engaged to defend against litigation arising from the Montecito mudslides and others alleged to have been caused by rains falling on land impacted by the wildfires.

Hueston Hennigan is recognized as one of the top trial boutiques in the country. The firm is noted for its commitment to taking matters of public and social import, and the work of its attorneys has been recognized by U.S. News and World Report/Best Lawyers, Benchmark Litigation, The Los Angeles Daily Journal, Chambers and Partners USA, and other legal directories and news outlets.

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The Art of the Trial: Closing Arguments

Brian Hennigan Art of the Trial: Closing Arguments

In his column on Art of the Trial: Closing Arguments, Mr. Hennigan, who is a Fellow of the American College of Trial Lawyers, shares tips on organizing the content of a closing argument, resisting the urge to rest, and how to avoid making jurors giggle in disbelief.

By Brian J. Hennigan

The trial is over. All witnesses have finished their testimony. The exhibits have either been received into evidence or never will be admitted. The trial court has reviewed with counsel the jury instructions. The jury is assembled in the box. The trial judge turns to you, telling the jury that it will first hear from plaintiff’s counsel, in closing argument. You stand, turn to the jury, and…

Clearly, this is not the time to start thinking about the form and substance of your closing argument. You have doubtlessly studied the subject before the day in court. You have researched the subject, and probably run though the argument with friends — or at least to yourself during the long commutes to the courthouse during the trial. Depending on the size of the case and the anxiety level of your client, you have likely presented the closing argument to mock juries to assess how a jury will respond to your key points.

I have tried approximately 50 cases in federal and state court, as a federal prosecutor, a criminal defense counsel, as well as criminal and civil cases on both the plaintiff and defense side. There is no “one size fits all” formula for presenting an effective closing argument. But, there are a common number of practice tips than attorney should keep in mind in designing and presenting an effective closing argument.

Read more in: The Daily Journal

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Michael Behrens and Xinlin Li Morrow Promoted to Counsel

Michael Behrens and Xinlin Li Morrow Promoted to Counsel

Hueston Hennigan is pleased to announce the promotion of Michael Behrens and  Xinlin Li Morrow  to Counsel.

Ms. Morrow’s practice focuses on white collar defense, complex business litigation, and patent litigation. She has represented clients in a broad range of industries, including aviation, biotechnology, cyber security, finance, professional sports, software, and telecommunications. She also has successfully represented individuals facing SEC and DOJ investigations and actions.

“Xinlin is a dynamic lawyer who handles cases across subject matters,” said Moez Kaba. “She has shown that one can crush a deposition in Hong Kong one morning, and be back for another one in Los Angeles the next day, without skipping a beat.  Xinlin has also developed a critical IP expertise while expanding her contributions in many other areas.”

Mr. Behrens has litigated contract, defamation, commercial lease, health care fraud, RICO, labor union, and C-suite employment disputes, and has argued and won before the Ninth Circuit and in district court.  Mr. Behrens specializes in representing governments and universities, and advises and guides institutions facing regulatory action.

“Mike sets himself apart as a strategic, measured, and earnest advocate for his clients,” said John Hueston.  “His steady approach to matters and clients make him both a pleasure to work with and an essential part of our teams.  More than once, Mike has been called upon to parachute into a case to support a trial or help win summary judgment.  He has done so with ease and skill.”

With the promotions of Ms. Morrow and Mr. Behrens, the firm continues its annual promotion to counsel of associates who are poised for partner consideration in the coming years. “We believe we have some of the best associates in the nation, and Xinlin and Mike are great examples of that,” said Managing Partner Brian Hennigan.

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Steven Feldman Elected Partner

Hueston Hennigan is pleased to announce the election of Steven Feldman to the partnership.

“Steve is a talented, creative and accomplished lawyer who possess a formidable and rigorous intellect,” said Managing Partner Brian Hennigan. “His commitment to client services and engagement in the wider legal community are a real asset to the firm. We are thrilled to welcome him to the partnership.”

Since joining Hueston Hennigan at its inception, Steve has helped clients navigate a broad range of high-stakes litigation, with a focus on complex commercial disputes and challenging class actions.  He has served as trial counsel in multiple federal jury trials, each of which resulted in favorable verdicts.  He has also prevailed on behalf of his clients, including Fortune 500 companies such as Amgen and T-Mobile, as well as high-profile individuals such as Alec Baldwin and William I. Koch.

After graduating from Harvard Law School, cum laude, Steve began his career at Davis Polk & Wardwell in New York City.  He then clerked for Judge Jacqueline H. Nguyen on both the U.S. District Court for the Central District of California and the U.S. Court of Appeals for the Ninth Circuit. Subsequently, he worked as an associate at Irell & Manella in Los Angeles.

In addition to his practice, Steve serves on the Association of Business Trial Lawyers’ Young Leadership Board. He moderates the ABTL “The Insight Roundtable,” a series he created featuring one-on-one interviews with leading jurists, lawyers and business executives.  Steve also serves on the Board of Directors of the Harvard Law School Alumni Association of Southern California.

Steve Feldman’s full bio can be found here.

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Navajo Nation Sues Wells Fargo

On behalf of the Navajo Nation, Hueston Hennigan has filed suit against Wells Fargo Bank. The suit alleges the bank deliberately targeted members of the nation’s largest tribe with predatory and fraudulent practices, then lied to the tribal government when confronted. The complaint alleges that Wells Fargo employees at branches on the Navajo Nation routinely misled customers into opening unnecessary accounts and obtained debit and credit cards without customers’ consent.

Among the populations targeted by Wells Fargo were the tribe’s elders — some of whom do not speak English well. They were purposely confused and deceived into purchasing products to help employees meet banking quotas. Wells Fargo went so far as to attend community events, like flea markets and basketball games, in an attempt to sign Navajo people up for unnecessary accounts en masse—all to meet its sales targets. These practices were particularly harmful because Wells Fargo, in some cases, is the only banking option for residents.

“Wells Fargo’s targeted exploitation of the most vulnerable Navajo communities reflects an even darker and more insidious side to Wells Fargo profiteering schemes that have been unearthed to date.  Wells Fargo deceived the Navajo people and lied to their government, subverting the government’s ability to represent the legitimate interests of the Tribe,” said attorney John Hueston.

“Wells Fargo’s exploitation of its customers has been well documented,” said President Russell Begaye. “But even so, Wells Fargo’s actions toward the Navajo people have been of a uniquely outrageous nature.”

Attorney General Ethel Branch said, “Wells Fargo must be held accountable for its unfair and unlawful practices directed toward the Navajo people. Among their other despicable acts, the bank specifically targeted our most vulnerable population – our elders.”

The suit was filed in the United States District Court for the District of New Mexico. The Navajo Nation is represented by John C. Hueston,  Moez M. Kaba, Leanne Vanecek, Stephen Richards  and Selena Galaviz of Hueston Hennigan LLP.

 

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