The Lawletter Vol. 50 No. 1

Anne Hemenway—Senior Attorney

      Over 90,000 individuals have sued Johnson & Johnson and other parties for damages alleging that its talcum powder products—including Johnson's Baby Powder, which has been widely used on babies over the past 50 years—contain asbestos, which causes cancer. While Johnson & Johnson denies that its products contain asbestos, and insists that there is no link between its products and cancer, it has stopped selling talc-based baby powder worldwide.

            Since 2021, Johnson & Johnson has tried to use the bankruptcy courts to settle the tens of thousands of claims against it, without success. The effort failed in 2021 and in 2023, and most recently failed a third time on March 31, 2025. In 2021, Johnson & Johnson created a subsidiary called LTL Management and then pulled all of the baby powder claims into the subsidiary. A day after that was accomplished, LTL Management declared bankruptcy in the Bankruptcy Court for the Western District of North Carolina. The LTL bankruptcy was transferred to the Bankruptcy Court for the District of New Jersey and was ultimately dismissed by the Third Circuit Court of Appeals because the appellate court found that LTL—"a company created to file for bankruptcy"—was not in any financial distress. In re LTL Mgmt., LLC, 64 F.4th 84, 110 (3d Cir. 2023).

Lawletter Vol. 49 No. 4

Anne Hemenway—Senior Attorney

CONSTITUTIONAL LAW/SECOND AMENDMENT: United States Supreme Court Allows Statutory Ban on Possession of Firearms by Persons Subject to Domestic Violence Restraining Order

      In United States v. Rahimi, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024), the United States Supreme Court, in an unusual nearly unanimous 8-1 decision, upheld a 1994 federal criminal law, 18 U.S.C. § 922(g)(8), against a challenge that the law violated the Second Amendment. The statute bans the possession of a gun by someone who has been the subject of a domestic violence restraining order or any order that restrains a person from harassing, stalking, or threatening an intimate partner or child of such partner or engaging in other conduct that would place an intimate partner in reasonable fear of injury.

            The statute was originally challenged by Rahimi as violating the Second Amendment, although he conceded that the restraining order against him satisfied the statutory criteria for banning him from possessing a firearm. The federal district court denied Rahimi's motion to dismiss the indictment for possessing a firearm in violation of Section 922(g)(8) on Second Amendment grounds. On appeal, the Supreme Court decided New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). In light of that ruling, the Fifth Circuit Court of Appeals reversed, holding that the indictment should be dismissed because Section 922(g)(8) does not fit within the “Nation's historical tradition of firearm regulation.” United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023).

The Lawletter Vol. 49 No. 3

Anne Hemenway, Senior Attorney

CONSTITUTIONAL LAW/SECOND AMENDMENT:  United States Supreme Court Allows Statutory Ban on Possession of Firearms by Persons Subject to Domestic Violence Restraining Order

          In United States v. Rahimi, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024), the United States Supreme Court, in an unusual nearly unanimous 8-1 decision, upheld a 1994 federal criminal law, 18 U.S.C. § 922(g)(8), against a challenge that the law violated the Second Amendment. The statute bans the possession of a gun by someone who has been the subject of a domestic violence restraining order or any order that restrains a person from harassing, stalking, or threatening an intimate partner or child of such partner or engaging in other conduct that would place an intimate partner in reasonable fear of injury.

      The statute was originally challenged by Rahimi as violating the Second Amendment, although he conceded that the restraining order against him satisfied the statutory criteria for banning him from possessing a firearm. The federal district court denied Rahimi's motion to dismiss the indictment for possessing a firearm in violation of Section 922(g)(8) on Second Amendment grounds. On appeal, the Supreme Court decided New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). In light of that ruling, the Fifth Circuit Court of Appeals reversed, holding that the indictment should be dismissed because Section 922(g)(8) does not fit within the “Nation's historical tradition of firearm regulation.” United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023).

Lawletter Vol 49 No. 2

Anne Hemenway—Senior Attorney

            On March 15, 2024, the United States Supreme Court decided a pair of cases from Michigan and California on the issue of whether a public official violates the First Amendment by blocking individuals from the public official's personal social media page. In the Michigan case, Lindke v. Freed, 601 U.S. 187, 144 S. Ct. 756, 218 L. Ed. 2d 121 (2024), Kevin Lindke, a private citizen argued that James R. Freed, the unelected city manager of Port Huron, Michigan, violated his free speech rights when the unelected official blocked the complaining citizen from his personal Facebook page. In the California case, O'Connor-Ratcliff v. Garnier, 601 U.S. 205, 144 S. Ct. 717, 218 L. Ed. 2d 138 (2024), two elected school board members blocked from their social media pages the parents who criticized the board of trustees. In both cases, the blocked citizens were outraged that they were barred from the private internet sites.

Lawletter No. 48 Vol. 4

ELECTION LAW:  Federal District Court Judge Orders Georgia Lawmakers to RedrawCongressional Map for the 2024 Election

Anne Hemenway, Senior Attorney

        On October 26, 2023, in three cases similar to the U.S. Supreme Court decision rejecting Alabama's congressional map, the Federal District Court for the Northern District of Georgia in Alpha Phi Alpha Fraternity, Inc. v. Brad Raffensperger, No. 1:21-CV-05337-SCJ, Pendergrass v. Brad Raffensperger, No. 1:21-CV-05339-SCJ, and Grant v. Brad Raffensperger, No. 1:22-CV-00122-SCJ, 2023 U.S. Dist. LEXIS 192080 (N.D. Ga. Oct. 26, 2023), wrote a consolidated 516-page Opinion and Memorandum of Decision also rejecting Georgia lawmakers' congressional maps. In a state where the recent population growth has been almost entirely made up of minority residents, the state's congressional and legislative maps presented to the court did not add more majority-Black districts. Accordingly, the federal court concluded that despite the fact that Black voters have more opportunities, "the political process is not equally open to Black voters." Further, the court concluded that the current U.S. congressional maps presented to the court dilute and diminish the Black population's voting power in the Atlanta area.

The Lawletter Vol. 48 No. 1

Anne Hemenway, Senior Attorney, National Legal Research Group, Inc.

        It is not uncommon for a debtor who filed a Chapter 11 or 13 bankruptcy case to die or become incapacitated during the life of the bankruptcy proceeding. Under Fed. R. Bankr. P. 1016:

If a reorganization, family farmer's debt adjustment, or individual's debt adjustment case is pending under chapter 11, chapter 12, or chapter 13, the case may be dismissed; or if further administration is possible and in the best interest of the parties, the case may proceed and be concluded in the same manner, so far as possible, as though the death or incompetency had not occurred.

            Interestingly, the rule is different where the debtor filed under Chapter 7. The death or incompetency of the debtor "shall not abate a liquidation case under chapter 7 of the Code." This is because the death of the debtor has no practical effect on the administration of a Chapter 7 which is in the hands of the Chapter 7 Trustee. See Hawkins v. Eads, 135 B.R. 380 (Bankr. E.D. Cal. 1991).

The Lawletter Vol 46 No 6

Anne Hemenway—Senior Attorney, National Legal Research Group

            Facing tens of thousands of claims against Johnson & Johnson's ("J&J's") baby powder and other talc products, alleging that the baby powder contains asbestos and causes cancer, J&J put the talc claims into a separate entity called LTL Management LLC, which then filed for Chapter 11 bankruptcy in mid-October 2021 in the U.S. Bankruptcy Court for the Western District of North Carolina. In re LTL Mgmt., LLC, No. 21-30589 (Bankr. W.D.N.C. Oct. 14, 2021). J&J itself is not part of the bankruptcy filing.

            The pharmaceutical company's corporate shuffling and bankruptcy maneuver is known as a "Texas two-step" bankruptcy, whereby J&J split its business through a divisional merger under Texas law and created a new entity to carry the talc liabilities. The Texas law allowed J&J to avoid accountability for the over 40,000 talc powder claims. The State's divisive merger statute, Tex. Bus. Orgs. Code Ann. § 1.002(55)(A), allows a company to divide into two separate entities. Because a divisive merger is not treated as an assignment of assets or liabilities, it is used as a strategic alternative to a traditional spin off or asset sale.

The Lawletter Vol 46 No 2         

Anne B. Hemenway—Senior Attorney, National Legal Research Group

            The COVID-19 pandemic has caused many state courts around the country to either close down during parts of 2020 and 2021 or dramatically curtail operations. In many jurisdictions, jury trials have been canceled or postponed for months. The pandemic has resulted in a plethora of federal court cases regarding requests by federal inmates to be released from federal custody and other court-related issues. See Fern L. Kletter, COVID-19 Related Litigation: Effect of Pandemic on Release from Federal Custody, 54 A.L.R. Fed. 3d art. 1 (2020 & Westlaw updated weekly).

            In a case of first impression in the Commonwealth of Virginia, Clarke v. Medical Facilities of America, Inc. , No. CL20-4379, 2020 Va. Cir. LEXIS 493 (Va. Cir. Ct. City of Norfolk Dec. 30, 2020), the court reviewed whether pandemic-related issues were material to a venue dispute. In that case, defendants in a wrongful death action sought to transfer venue from the circuit court in the City of Norfolk, one of the largest cities in Virginia, to a small rural circuit court closer to the rehabilitation center where the plaintiff decedent had been treated.

Anne Hemenway, Senior Attorney, National Legal Research Group

     The economic fallout from the COVID-19 pandemic and the sudden and worldwide shuttering of large and small businesses may be felt for a long time.  One of the resulting issues is the applicability of a force majeure clause, or common-law impossibility, frustration of purpose, or commercial impracticability excuses for contract performance and obligations. Force majeure clauses come into effect when events occurring beyond the control of the parties prevent performance of contract obligations. Some contracts include specific force majeure events that will excuse performance at this time, such as a pandemic (the World Health Organization declared a pandemic on March 11, 2020) or when governmental or administrative action is taken that disrupts or precludes performance under a contract.

The Lawletter Vol 44 No 6

Anne Hemenway—Senior Attorney, National Legal Research Group

            In Return Mail, Inc. v. USPS, 139 S. Ct. 1853 (2019), the U.S. Supreme Court held that a federal agency is not considered a "person" for purposes of seeking review of the validity of a patent under the Leahy-Smith America Invents Act of 2011 ("AIA"), 35 U.S.C. §§ 1 et seq.  The AIA, enacted on September 16, 2011, changed the patent system from a first-to-invent to a first-inventor-to-file system.  The transition to a first-to-file system took place over a period of approximately 18 months.

            The AIA also created the Patent Trial and Appeal Board and established three types of administrative review proceedings before the Board.  See 35 U.S.C. § 6.  The reviews include an "inter partes review," a "post-grant review," and a "covered-business-method" ("CBM") review.  See id. §§ 311, 321.